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COMMENTARIES
ON THE
CONSTITUTION OF THE UNITED STATES;
AVITH
A PRELIMINARY REVIEW
OF
THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES,
BEFORE THE ADOPTION OF THE CONSTITUTION.
By JOSEPH STORY, LL. D.,
DANE PROFESSOR OF LAW IN HARVARD UNIVERSIXy.
IN THREE VOLUMES.
Magistratibus igitur opus est ; sine quorum prudentii ac diligentia. esse civitas non potest
quorumque dcseriptionc omnis Reipubjic?? mpdcratip co'jtiietur."
^, ^^ ., ;_^ , ',. ' Cic3R4),i»i', Xeq. lib. 3. cap. 2.
"Government is a contrivautSe of hu'mari wisdom to provide tor human wants."
.; "' 13URKE.
VOLUM'JS IlL:;;;'....'
BOSTON:
HILLIARD, GRAY, AND COMPANY.
CAMBRIDGE:
BROWN, SHATTUCK, AND CO.
1833.
Checked
IVlay i^A*^
, "Hl N?:w YORK
PUBLIC LIBRARY,
TM^I?/'' LENOX AMD
TILDE N FOUND AT^S
Entered according to tho act of Congress in the year one thousand eight hundred and thirty-three,
by Joseph Stort,
in the Clerk's office of the District Court of the District of Massachusetts.
CHARLK5 FOLSOM, PUINTER TO THE UNIVERSITY.
COMMENTARIES.
CHAPTER XVI.
POWER OVER NATURALIZATION AND BANKRUPTCY.
§ 1097. The next clause is, that congress "shall have
" power to estabhsh an uniform rule of naturalization,
"and uniform laws on the subject of bankruptcies
" throughout the United States."
^ 1098. The propriety of confiding the power to
establish an uniform rule of naturalization to the nation-
al government seems not to have occasioned any doubt
or controversy in the convention. For aught that ap-
pears on the journals, it was conceded without objec-
tion.^ Under the confederation, the states possessed
the sole authority to exercise the power ; and the dis-
similarity of the system'in different '-state?, vvas general-
ly admitted, as a prominent. defect, and .laid the foun-
dation of many delicate arxd' -in tricale. questions. As
the free inhabitants of ea.ch' sta:^ v^er^ entitled to all
the privileges and immunicies of citizens in all the
other states,^ it followed, that a single state possessed
the power of forcing into every other state, with the
» Journ. of Convention, 2^0, 257. — One of the grievances stated in
the Declaration of Independence was, that the king had endeavoured to
prevent the population of the states by obstructing the laws for natural-
ization of foreigners.
2 The Confederation, art. 4.
VOL. III. 1
2 CONSTITUTION OF THE U. STATES. [bOOK III.
enjoyment of every immunity and privilege, any alien,
whom it might choose to incorporate into its own
society, however repugnant such admission might be to
their polity, conveniencies, and even prejudices. In
effect every state possessed the power of naturalizing
aliens in every other state ; a power as mischievous in
its nature, as it was indiscreet in its actual exercise.
In one state, residence for a short time might, and did
confer the rights of citizenship. In others, qualifica-
tions of greater importance were required. An alien,
therefore, incapacitated for the possession of certain
rights by the laws of the latter, might, by a previous
residence and naturalization in the former, elude at
pleasure all their salutary regulations for self-protec-
tion. Thus the laws of a single state were preposte-
rously rendered paramount to the laws of all the others,
even within their own jurisdiction.^ And it has been
remarked with equal truth and justice, that it was
owing to mere casualty, that the exercise of this power
under the confederation did not involve the Union in
the most serious embarrassments.^ There is great
wisdom, therefore, in confiding to the national govern-
ment the pov/er to establish a uniform rule of natural-
ization throughout th'e ' Unitoc" States. It is of the
deepest interest to the: whole Union to know, who are
entided to enjoy the ; rights of citizens in each state,
since they thei-ehy, in B'iec-, become entitled to the
rights of citizens in all the states. If aliens might be
admitted indiscriminately to enjoy all the rights of citi-
zens at the will of a single state, the Union might itself
be endangered by an influx of foreigners, hostile to its
institutions, ignorant of its powers, and incapable of
a due estimate of its privileges.
I The Federalist, No. 42. 2 ibid.
CH. XVI.] POWERS OF CONttRESS-NATURALIZATlOX. 3
§ 1099. It iollows, from tlic very nature of the pow-
er, that to be uselul, it must be exclusive; ibr aeon-
current power in the states would brin^ back all the
evils and embarrassments, which the uniform rule ot
the constitution v*as designed to remedy. And, ac-
cordingly, though there was a momentary hesitation,
when the constitution first Avent into operation, wheth-
er the power might not still be exercised by the states,
subject only to the control of congress, so far as the
legislation of the latter extended, as the supreme law ; ^
yet the power is now firmly established to be exclu-
sive.^ The Federalist, indeed, introduced this very case,
as entirely clear, to illustrate the doctrine of an exclu-
sive power by implication, arising from the repugnancy
of a similar power in the states. " This power must
necessarily be exclusive," say the authors ; " because,
if each state had power to prescribe a distinct rule,
there could be no uniform rule." ^
1 Collet V. Collet, 2 Dall. R. 294 ; United States v. Villato, 2 Dall. 270 ;
Serircant on Const. Law, ch. 28, [ch. 30, 2d. edit]
2 "sec The Federalist, No. 32, 42 ; Chirac v. Chirac, 2 Wheat. R. 259,
269 ; Rawlc on the Const, ch. 9, p. 84, 85 to 88 ; Houston v. Moore,
5 Wheat. R. 48, 49 ; Golden v. Prince, 3 Wash. Cir. Ct. R. 313, 322 ;
1 Kent's Comm. Lect. 19, p. 397 ; 1 Tuck. Black. Comm. App. 255 to 259;
12 Wheat. R. 277, per. Jolmson J. ; but see Id. 307, per Tliompson J. —
A question is often discussed under this head, how far a person has a
right to throw off his national allegiance, and to become the subject of
another country, without the consent of his native country. This is
usually denominated the right of expatriation. It is beside the pur-
pose_of these Commentaries to enter into any consideration of this sub-
ject, as it does not properly belong to any constitutional inquiry. It
may be stated, however, that there is no authority, which has affirma-
tively maintained the right, (unless provided for by the laws of the par-
ticular country,) and there is a very strong current of reasoning on the
other side, independent of the known practice and claims of the nations
of modern Europe. See Rawle on the Constitution, cb. 9, p. 85 to 101 ;
Sergeant on Const. Law, ch. 28, [ch. 30.] ; 2 Kent's Comm. Lect. 25,
p. 35 to 42.
3 The Federalist, No. 32.
4 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1100. The power to pass laws on the subject of
bankruptcies was not in the original draft of the con-
stitution. The original article was committed to a com-
mittee together with the following proposition: "to
estabUsh uniform laws upon the subject of bankrupt-
cies, and respecting the damages arising on the protest
of foreign bills of exchange." The committee subse-
quently made a report in favour of incorporating the
clause on the subject of bankruptcies into the constitu-
tion ; and it was adopted by a vote of nine states
against one.^ The brevity, with which this subject is
treated by the Federalist, is quite remarkable. The
only passage in that elaborate commentary, in which
the subject is treated, is as follows: "The power of
establishing uniform laws of bankruptcy is so intimately
connected with the regulation of commerce, and will
prevent so many frauds, where the parties or their
property may lie, or be removed into different states,
that the expediency of it seems not likely to be drawn
in question." ^
^ 1101. The subject, however, deserves a more
exact consideration. Before the adoption of the con-
stitution the states severally possessed the exclusive
right, as matter belonging to their general sovereignty,
to pass laws upon the sul)ject of bankruptcy and insol-
vency.^ Without stopping at present to consider,
what is the precise meaning of each of these terms, as
contradistinguished from the other; it may be stated,
that the general object of all bankrupt and insolvent
laws is, on the one hand, to secure to creditors an ap-
l Journ. of Convontio!^ 220, P.Or^, :{-20,:32I, .'l."")?.
y Tho Federalist, No. 42.
y Sluriri.H V. Croivninshield, 4 W'lioat. K. 122, 203,204 ; Rawle on the
Constitution, ch. 9, p. 101, 102.
CH. XVI.] POWERS OF COXGRESS - IJAXKRUPTCY. 5
propriation of tlie property of their debtors pro tanlo
to the discharge of their debts, whenever the latter are
unable to discharge the whole amount ; and, on the
other hand, to relieve unfortunate and honest debtors
from perpetual bondage to their creditors, either in the
shape of unhmited imprisonment to coerce payment of
their debts, or of an absolute right to appropriate and
monopolize all their future earnings. The latter course
obviously destroys all encouragement to industry and
enterprize on the part of the unfortunate debtor, by
taking from him all the just rewards of his labour, and
leaving him a miserable pittance, dependent upon
the bounty or forbearance of his creditors. The for-
mer is, if possible, more harsh, severe, and indefensible.^
It makes poverty and misfortune, in themselves suffi-
ciently heavy burthens, the subject or the occasion
of penalties and punishments. Imprisonment, as a
civil remedy, admits of no defence, except as it is used
to coerce fraudulent debtors to yield up their pres-
ent property to their creditors, in discharge of their
engagements. But when the debtors have no prop-
erty, or have yielded up the whole to their creditors,
to allow the latter at their mere pleasure to imprison
them, is a refinement in cruelty, and an indulgence of
private passions, which could hardly find apology in an
enlightened despotism ; and are utterly at war with
all the rights and duties of free governments. Such a
system of legislation is as unjust, as it is unfeeling. It
is incompatible with the first precepts of Christianity ;
and is a living reproach to the nations of Christendom,
carrying them back to the worst ages of paganism.^
' See 1 Tuck. Black Comm. App. 259.
2 See 2 Black. Comm. 471, 472, 473. See also 1 Tuck. Black. Comm.
App. 259.
6 CONSTITUTION OF THE U. STATES. [bOOK III.
One of the first duties of legislation, while it provides
amply for the sacred obligation of contracts, and the
remedies to enforce them, certainly is, jxrri pass?/, to re-
lieve the unfortunate and meritorious debtor from a
slavery of mind and body, which cuts him off from a
fair enjoyment of the common benefits of society, and
robs his family of the fruits of his labour, and the benefits
of his paternal superintendence. A national govern-
ment, which did not possess this power of legislation,
w ould be little worthy of the exalted functions of guard-
ing the happiness, and supporting the rights of a free
people. It might guard against pohtical oppressions,
only to render private oppressions more intolerable,
and more glaring.
^ 1102. But there are peculiar reasons, independent
of these general considerations, why the government
of the United States should be entrusted with this
power. They result from the importance of preserv-
ing harmony, promoting justice, and securing equality
of rights and remedies among the citizens of all the
states. It is obvious, that if the power is exclusively
vested in the states, each one will be at liberty to frame
such a system of legislation upon the subject of bank-
ruptcy and insolvency, as best suits its own local inter-
ests, and pursuits. Under such circumstances no uni-
formity of system or operations can be expected. One
state may adopt a system of general insolvency ; an-
other, a limited or temporary system ; one may relieve
from the obligation of contracts ; another only from
imprisonment ; another may adopt a still more restric-
tive course of occasional relief ; and another may re-
fuse to act in any manner upon the subject. The
laws of one state may give undue preferences to one
class of creditors, as for instance, to creditors by bond, or
CH. XVI.] POWERS OF COXGllESS - IJANIv (\U1' IC V. 7
judgment ; another may provide lor an equality of debts,
and a disti-ibution pro raid without distinction among all.
One may prefer creditors living wilhiu the state to all
living without ; securing to the former an entire priori-
ty of payment out of the assets. Another may, with a
more hberal justice, provide for the equal payment of
all, at home and abroad, without favoui- or preference.
In short, diversities of almost infmite variety and ob-
ject may be introduced into the local system, which
may work gross injustice and inequality, and nourish
feuds and discontents in neighbouring states. What
is here stated, is not purely speculative. It has occurred
among the American states in the most offensive forms,
without any apparent reluctance or compunction on the
part of the offending state. There will always be
found in every state a large mass of politicians, who
will deem it more safe to consult their own temporary
interests and popularity, by a narrow system of prefer-
ences, than to enlarge the boundaries, so as to give to
distant creditors a fair share of the fortune of a ruined
debtor. There can be no other adequate remedy, than
giving a power to the general government, to introduce
and perpetuate a uniform system.^
§ 1103. In the next place it is clear, that no state
can introduce any system, which shall extend beyond
its own territorial hmits, and the persons, who are
subject to its jurisdiction. Creditors residing in other
states cannot be bound by its laws ; and debts con-
tracted in other states are beyond the reach of its
legislation. It can neither discharge the obligation of
such contracts, nor touch the remedies, which relate to
them in any other jurisdiction. So that the most meri-
1 See Mr. Justice Johnson's Opinion in Ogden x. Saunders, 12 WJicat.
R. 274, 275.
8 COXSTITUTIOX OF THE U. STATES. [bOOK III.
torious insolvent debtor will be harassed by new suits,
and new litigations, as often as he moves out of the
state boundaries.^ His whole property may be absorb-
ed by his creditors residing in a single state, and he
may be left to the severe retributions of judicial process
in every other state in the Union. Among a people,
whose general and commercial intercourse must be so
great, and so constantly increasing^ as in the United
States, this alone would be a most enormous evil,
and bear with peculiar severity upon all the commer-
cial states. Very few persons engaged in active busi-
ness will be without debtors or creditors in many states
in the Union. The evil is incapable of being redressed
by the states. It can be adequately redressed only
by the power of the Union. One of the most pressing
grievances, bearing upon commercial, manufacturing,
and agricultural interests at the present moment, is the
total want of a general system of bankruptcy. It is
well known, diat the povvcr has lain dormant, except
for a short .period, ever since the constitution was
adopted ; and the excellent system, then put into op-
eration, was repealed, before it had any fair trial, upon
grounds generally believed to be wholly beside its merits,
and from causes more easily understood, than deliber-
ately vindicated.^
1 2 Kent's Comm. Lect. 37, p. 3Q3, 3'24 ; Serg^eant on Const. Law, ch.
28, [ch. 30 ;] Mr. Justice Johnson in 12 Wheat. R. 273 to 27o.
2 See the Debate on the Bankrupt Bill in the House of Representa-
tives in the winter session of 1818 ; Webster's Speeches, p. 510, &c. —
It is matter of rejret, that the learned mind of Mr. Chancellor Kent
should have attached so much importance to a hasty, if not a petulant,
remark of Lord Eldon on this subject. There is no commercial state in
Europe, which has not, for a lonf]^ period, possessed a system of bank-
rupt or insolvent laws. England has had one for more than three cen-
turies. And at no time have the parliament or people shown any inten-
tion to abandon the system. On tlie contrary, by recent acts of parlia-
CH. XVI.] POWERS OF CONGRESS - BANKRUPTCY. 9
§ 1104. Ill the next place, the power is important
in regard to foreign countries, and to our commercial
credits and intercourse with them. Unless the gen-
eral government were invested with authority to pass
suitable laws, which should give reciprocity and equality
in cases of bankruptcies here, there would be danger,
that the state legislation might, by undue domestic
preferences and favours, compel foreign countries to
retaliate ; and instead of allowing creditors in the United
States to partake an equality of benefits in cases of
bankruptcies, to postpone them to all others. The
existence of the power is, therefore, eminently useful ;
first, as a check upon undue state legislation ; and sec-
ondly, as a means of redressing any grievances sustain-
ed by foreigners in commercial transactions.
§ 1105. It cannot but be matter of regret, that a
power so salutary should have hitherto remained (as
has been already intimated) a mere dead letter. It
is extraordinary, that a commercial nation, spreading
its enterprise through the whole v/orld, and possessing
such an infinitely varied, internal trade, reaching al-
most to every cottage in the most distant states, should
voluntarily surrender up a system, which has elsewhere
enjoyed such general favour, as the best security of
creditors against fraud, and the best protection of debt-
ors against oppression.
ment, increased activity and extent have been given to the bankrupt and
insolvent laws. It is easy to exaggerate the abuses of the system, and
point out its defects in glowing language. But the silent and potent in-
fluences of the system in its beneficent operations are apt to be over-
looked, and are rarely sufficiently studied. What system of human
legislation is not necessarily imperfect ? Yet who would, on that
account, destroy the fabric of society ? — 2 Kent's Comm. Lect. 37,
p. 321 to 324, and note {b) id. (2d edit. p. 391, 392.)
VOL. III. 2
10 COiNSTlTUTION OF THE U. STATES. [bOOK III.
^ 1106. What laws are to be deemed bankrupt laws
within the meaning of the constitution has been a mat-
ter of much forensic discussion and argument. At-
tempts have been made to distinguish between bank-
rupt laws and insolvent laws. For example, it has
been said, that laws, ^vhich merely liberate the person
of the debtor, are insolvent laws, and those, which dis-
charge the contract, are bankrupt laws. But it would
be very diilicult to sustain this distinction by any uni-
formity of laws at home or abroad. In some of the
states, laws, known as insolvent laws, discharge the per-
son only ; in others, they discharge the contract. And
if congress were to pass a bankrupt act, which should
discharge the person only of the bankrupt, and leave
his future acquisitions hable to his creditors, there would
be great difficulty in saying, that such an act was not
in the sense of the constitution a bankrupt act, and so
within the power of congress.^ Again ; it has been
said, that insolvent laws act on imprisoned debtors only
at their own instance ; and bankrupt laAvs only at the
instance of creditors. But, however true this may have
been in past times, as the actual course of Enghsh
legislation,^ it is not true, and never was true, as a dis-
tincdon in colonial legislation. In England it was an
accident in the system, and not a material ground to
discriminate, who were to be deemed in a legal sense
1 Sturgis V. Crowninsfiield, 4 Wheat. R. 122, 194, 202.
2 It was not true in England at the time of the American revolution ;
for under the insolvent act, commonly called the "Lords' Act of 32 Geo.
2, ch. 28," the creditors of the insolvent were equally with himself enti-
tled to proceed to procure the benefit of the act ex parte. See 3 Black.
Comm. 41G, and note 3 of Mr. Christian. The present system of bank-
ruptcy in England has been enlarged, so as now to include voluntary
and concerted cases of bankruptcy. And the insolvent system is appli-
ed to all other imprisoned debtors, not within the bankrupt laws- See
Pctersdovft's Abridgment, titles, Bankrupt and Insolvent.
CH. XVI.] POWERS OF CONGRESS - BANKRUPTCY. 11
insolvents, or bankrupts. And if an act of congress
should be passed, which should authorize a commis-
sion of bankruptcy to issue at the instance of the debtor,
no court would on this account be warranted in saying,
that the act was unconstitutional, and the commission
a nullity.^ It is believed, that no laws ever w^ere passed
in America by the colonies or states, which had the
technical denominadon of " bankrupt laws." But insol-
vent laws, quite co-extensive with the English bankrupt
system in their operations and objects, have not been
unfrequent in colonial and state legislation. No dis-
tinction was ever practically, or even theoretically at-
tempted to be made between bankruptcies and insol-
vencies. And an historical review of the colonial and
state legislation will abundantly show, that a bankrupt
law may contain those regulations, which are generally
found in insolvent laws ; and that an insolvent law may
contain those, which are common to bankrupt laws.^
§ 1107. The truth is, that the Enghsh system of
bankruptcy, as well as the name, was borrowed from
the condnental jurisprudence, and derivatively from the
Roman law. " We have fetched," says Lord Coke,
" as well the name, as the wickedness of bankrupts, from
foreign nations ; for banque in the French is mensa, and
a banquer or eschanger is mensarius ; and i^oiite is a
sign or mark, as we say a cart route is the sign or mark,
where the cart hath gone. Metaphorically it is taken
for him, that hath wasted his estate, and removed his
bank, so as there is left but a mention thereof. Some say
it should be derived from banque and rumpue, as he that
1 Sturgis V. Croivmnshield, 4 Wheat. R. 122, 194.
2 Siurgis V. Crowninshield, 4 Wheat. R. 122, 104, 198, 203; 2 Kent's
Comm. Lect. 37, p. 32], &c.
12 COXSTITUTIOX OF THE U. STATES. [bOOK III.
hath broken his bank or state.^ Mr. Justice Blackstone
inchnes strongly to this latter intimation, saying, that the
word is derived from the word banciis, or banque, which
signifies the table or counter of a tradesman, and riiptus,
broken ; denoting thereby one, whose shop or place of
trade is broken and gone. It is observable, that the
first statute against bankrupt, is ' against such persons,
as do make bankrupt,' (34 Hen. 8, ch. 4,) which is a
literal translation of the French idiom, qui font banque
routeJ^ ^
^ 1108. The system of discharging persons, who
were unable to pay their debts, was transferred from
the Roman law into continental jurisprudence at an
early period. To the glory of Christianity let it be said,
that the law of cession (cessio bonorum) was introduced
by the Christian emperors of Rome, whereby, if a debt-
or ceded, or yielded up all his property to his creditors,
he was secured from being dragged to gaol, omni quo-
que corporali cruciaiu semoto ; for as the emperor
(Justinian) justly observed, inhumanum erat spoliatiwi
fortunis suis in solidum damnari ;^ a noble declaration,
which the American republics would do well to follow,
and not merely to praise. Neither by the Roman, nor
the continental law, was the cessio bonorum confined to
traders, but it extended to all persons. It may be add-
ed, that the cessio bonorum of the Roman law, and that,
which at present prevails in most parts of the continent
of Europe, only exempted the debtor from imprison-
1 4 Inst. ch. 63.
2 2 Black. Comm. 472, note ; Cooke's Bankr. Laws, Introd. ch. L — Tlie
modern French phrase in the Code of Commerce is la hanquerouie,
" Tout commerQant failli, &c. est en etat de banqueroute." Art. 438.
3 2 Black. Comm. 472, 473; Cod. Lib. 7, tit. 71, per iotum, Ayliffe's
Pandects, B. 4, tit. 14.
CH. XVI.] POWERS OF CONGRESS - ]}AXKRL PTC Y. 13
ment. It did not relccose or dLschar<^e the debt, or* ex-
empt the future iicquisitions of the debtor from execu-
tion for the debt. The Enghsh statute, commonly
called the " Lords' Act," went no farther, than to dis-
charge the debtor's person. And it may be laid down,
as the law of Germany, France, Holland, Scotland, and
England, that their insolvent laws are not more exten-
sive in their operation, than the cessio bonorum of the
civil law. In some parts of Germany, we are informed
by Huberus and Heineccius, a cessio honorum does
not even work a discharge of the debtor's person, and
much less of his future effects.^ But with a view to
the advancement of commerce, and the benefit of cred-
itors, the systems, now commonly known by the name
of " bankrupt laws," were introduced ; and allowed a
proceeding to be had at the instance of the creditors
against an unwilling debtor, when he did not choose to
yield up his property ; or, as it is phrased in our law,
bankrupt laws were originally proceedings in invitum.
In the EngUsh system the bankrupt laws are limited to
persons, who are traders, or connected with matters of
trade and commerce, as such persons are peculiarly
liable to accidental losses, and to an inability of paying
their debts without any fault of their own.^ But this is
a mere matter of policy, and by no means enters into
the nature of such laws. There is nothing in the nature,
or reason of such laws to prevent their being applied
to any other class of unfortunate and meritorious debt-
ors.^
1 1 Kent's Comm. Lect. 19, p. 336 ; 1 Domat, B. 4, tit. 5, § 1, 2.
2 2 Black. Comm. 473, 474.
3 See Debate on the Bankr. Bill in the House of Representatives, Feb.
1818, 4 Elliot's Debates, 282 to 284. — Perhaps as satisfactory a de-
scription of a bankrupt law, as can be framed, is, that it is a law for the
14 COXSTITUTION OF THE U. STATES. [bOOK III.
^ 1109. How far the power of congress to pass uni-
form laws on the subject of bankruptcies supersedes
the authority of state legislation on the same subject,
has been a matter of much elaborate forensic discus-
sion. It has been strenuously maintained by some
learned minds, that the power in congress is exclusive of
that of the states ; and, whether exerted or not, it super-
sedes state legislation.^ On the other hand, it has been
maintained, that the power in congress is not exclusive;
that when congress has acted upon the subject, to the
extent of the national legislation the power of the states
is controlled and limited; but when unexerted, the
states are at liberty to exercise the power in its full ex-
tent, unless so far as they are controlled by other con-
stitutional provisions. And this latter opinion is now
firmly estabhshed by judicial decisions.^ As this doc-
trine seems now to have obtained a general acquies-
cence, it does not seem necessary to review the rea-
soning, on which the different opinions are founded ;
although, as a new question, it is probably as much open
benefit and relief of creditors and their debtors, in cases, in which the
latter are unable, or unwilling to pay their debts. And a law on tlje
subject of bankruptcies, in the sense of the constitution, is a law making
provisions for cases of persons failing to pay their debts. An amend-
ment was proposed by the state of New- York to the constitution at the
time of adopting it, that the power of passing uniform bankrupt laws
should extend only to merchants and other traders ; but it did not m.eet
general favour.*
1 See Go/^/en V. Prince, 3 Wash. Circ. R. 313; Ogden v. Saunders,
12 Wheat. R. 2G4, 207 to 270, per Washington J. It is well known,
that Mr. Justice Washington was not alone in the Court in this opinion
in the original case, [Sturgis v. Croicninshield, 4 Wheat. R. 122,) in
which it was first decided.
2 Sturgis v. CroummsMcld, 4 Wheat. R. 122, 191 to 19G; Id. 198 to
202; Ogdenv. Saunders, 12 Wheat. R. 273, 275,280, 30G, 310, 314,
a35, 369.
* Journal of Convention, Supplement, p. 436.
CH. XVI.] POWERS OF CONGRESS - BANKRUPTCY. 15
to controversy, as any one, which has ever given rise
to juthcial argumentation. But upon all such subjects
it seems desirable to adopt the sound practical maxim,
Interest reipuhlicce, ul jink sit Ulinm.
^ 1110. It is,iiowever, to be understood, that although
the states still retain the power to pass insolvent and
bankrupt laws, that power is not unlimited, as it was
before the constitution. It does not, as will be pres-
ently seen, extend to the passing of insolvent or bank-
rupt acts, which shall discharge the obligation of ante-
cedent contracts. It can discharge such contracts only,
as are made subsequently to the passing of such acts,
and such, as are made within the state between citi-
zens of the same state. It does not extend to con-
tracts made with a citizen of another state within the
state, nor to any contracts made in other states.^
1 Ogden V. Saunders, 12 Wlicat. R. 122, 369 ; Boyle v. Zacharie, 6 Pe-
ters's R. 348 ; 2 Kent. Comm. Lcct. 37, p. 323, 324 ; Sergeant on Const.
Law, ch. 28, p. 309, [ch. 30, p. 322 ;] Rawle on the Constitution, ch. 9,
p. 101, 102.
16 constitutio:n^ of the u. states, [book in.
CHAPTER XVII.
POWER TO COIN MONEY AND FIX THE STANDARD OF
WEIGHTS AND MEASURES.
§ 1111. The next power of congress is " to coin
" money, regulate the value thereof, and of foreign coin,
" and fix the standard of weights and measures."
^ 1112. Under the confederation, the continental
congress had delegated to them, " the sole and exclu-
sive right and power of regulating the alloy and value
of coin struck by their own authority, or by that of the
states," and " fixing the standard of weights and meas-
ures throughout the United States." It is observable,
that, under the confederation, there was no power given
to regulate the value of foreign coin, an omission, which
in a great measure would destroy any uniformity in the
value of the current coin, since the respective states
might, by diff'erent regulations, create a different value
in each.^ The constitution has, with great propriety,
cured this defect ; and, indeed, the whole clause, as it
now stands, does not seem to have attracted any dis-
cussion in the convention.^ It has been justly remark-
ed, that the power " to coin money " would, doubdess,
include that of regulating its value, had the latter power
not been expressly inserted. But the constitution
abounds with pleonasms and repetidons of this nature.^
^ 1113. The grounds, upon which the general power
to coin money, and regulate the value of foreign and
1 The Federalist, No. 42.
2 Journ. of Convention, '220, 257, .357.
3 Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828.
CH. XVII.] POWERS OF CONGRESS COINAGE. 17
domestic coin, is granted to the national government,
cannot require much illustration in order to vindicate it.
The object of the power is to produce uniformity of
value throughout the Union, and thus to preclude us
from the embarrassments of a perpetually fluctuating
and variable currency. Money is the universal medium
or common standard, by a comparison with which the
value of all merchandise may be ascertained, or, it is a
sign, which represents the respective values of all com-
modities.^ It is, therefore, indispensable for the wants
and conveniencies of commerce, domestic as well as
foreign. The power to coin money is one of the ordi-
nary prerogatives of sovereignty, and is almost univer-
sally exercised in order to preserve a proper circuladon
of good coin of a known value in the home market. In
order to secure it from debasement it is necessary, that
it should be exclusively under the control and regulation
of the government ; for if every individual were permit-
ted to make and circulate, what coin he should please,
there would be an opening to the grossest frauds and
impositions upon the pubUc, by the use of base and
false coin. And the same remark applies with equal
force to foreign coin, if allowed to circulate freely in a
country without any control by the government. Every
civilized government, therefore, with a view to prevent
such abuses, to facilitate exchanges, and thereby to en-
courage all sorts of industry and commerce, as well as
to guard itself against the embarrassments of an undue
scarcity of currency, injurious to its own interests and
credits, has found it necessary to coin money, and affix
to it a public stamp and value, and to regulate the in-
troduction and use of foreii^n coins.^ In England, this
i ] Black. Comm. 27(1
2 Smith's Wealth of Nations, B. ], ch. 4.
VOL. III. 3
18 CONSTITUTION OF THE U. STATES. [bOOK III.
prerogative belongs to the crown ; and, in former ages,
it was greatly abused ; for base coin was often coined
and circulated by its authority, at a value far above its
intrinsic worth ; and thus taxes of a burthensome na-
ture were laid indirectly upon the people.^ There is
great propriety, therefore, in confiding it to the legisla-
ture, not only as the more immediate representatives of
the public interests, but as the more safe depositaries
of the power.^
§ 1114. The only question, which could properly
arise under our political institutions, is, whether it should
be confided to the national, or to the state government.
It is manifest, that the former could alone give it com-
plete effect, and secure a wholesome and uniform cur-
rency throughout the Union. The varying standards
and re2;ulations of the different states would introduce
infinite embarrassments and vexations in the course of
trade ; and often subject the innocent to the grossest
frauds. The evils of this nature were so extensively
felt, that the power was unhesitatingly confided by the
articles of confederation exclusively to the general gov-
ernment,^ notwithstanding the extraordinary jealousy,
which pervades every clause of that instrument. But
the concurrent power thereby reserved to the states,
(as well as the want of a power to regulate the value of
foreign coin,) was, under that feeble pageant of sove-
reignty, soon found to destroy the whole importance of
the grant. The fioods of depreciated paper mxoney,
with which most of the states of the Union, during
the last war, as well as the revolutionary war with Eng-
land, were inundated, to the dismay of the traveller and
1 1 Black. Comm. 278 ; Christian's note, 21; Davies's Rep. 48; 1
Hale's PI. Cr. 192tol9G.
a 1 Tucker's Black. Comm. App. 261. 3 Art. 9.
CH. XVII.] POWERS OF CONGRESS COINAGE. 19
the ruin of commerce, afford a lively proof of the mis-
chiefs of a currency exclusively under the control of
the states.^
^ 1115. It will be hereafter seen, that this is an ex-
clusive power in congress, the states being expressly
prohibited from coining money. And it has been said by
an eminent statesman,^ that it is difficult to maintain, on
the face of the constitution itself and independent of
long continued practice, the doctrine, that the states,
not being at liberty to coin money, can authorize the
circulation of bank paper, as currency, at all. His rea-
soning deserves grave consideration, and is to the fol-
lowing effect. The states cannot coin money. Can
they, then, coin that, which becomes the actual and
almost universal substitute for money ? Is not the right
of issuing paper, intended for circulation in the place,
and as the representative of metallic currency, derived
merely from the power of coining and regulating the
metallic currency ? Could congress, if it did not pos-
sess the power of coining money and regulating the
value of foreign coins, create a bank with the power to
circulate bills ? It would be difficult to make it out.
Where, then, do the states, to whom all control over
the metallic currency is altogether prohibited, obtain
this power ? It is true, that in other countries, private
1 During the late war with Great Britain, (1812 to 1814,) in conse-
quence of the banks of the Middle, and Southern, and Western states
having suspended specie payments for their bank notes, they depreciated
as low as 25 per cent, discount from their nominal value. The duties on
inports were, however, paid and received in the local currency ; and the
consequence was, that goods imported at Baltimore paid 20 per cent-
less duty, than the same goods paid, when imported into Boston. This
was a plain practical violation of the provision of the constitution, that all
duties, imports, and excises shall be uniform.
2 Mr. Webster's Speech on the Bank of the United States, 25th and
28th of May, 1832.
20 CONSTITUTION OF THE U. STATES. [bOOK III.
bankers, having no legal authority over the coin, issue
notes for circulation. But this they do always with the
consent of government, express or implied ; and gov-
ernment restrains and regulates all their operations at
its pleasure. It would be a startling proposition in any
other part of the world, that the prerogative of coining
money, held by government, was Hable to be defeated,
counteracted, or impeded by another prerogative, held
in other hands, of authorizing a paper circulation. It is
further to be observed, that the states cannot issue
bills of credit ; not that they cannot make them a legal
tender ; but that they cannot issue them at all. This is
a clear indication of the intent of the constitution to re-
strain the states, as well from establishing a paper cir-
culation, as from interfering with the metallic circula-
tion. Banks have been created by states with no
capital whatever, their notes being put in circulation
simply on the credit of the state. What are the issues
of such banks, but bills of credit issued by the state ? ^
^ 1116. Whatever may be the force of this reason-
ing, it is probably too late to correct the error, if error
there be, in the assumption of this power by the states,
since it has an inveterate practice in its favour through
a very long period, and indeed ever since the adoption
of the constitution.
§ 1117. The other power, "to fix the standard of
" weights and measures," was, doubdess, given from
like motives of public policy, for the sake of uniformity,
and the convenience of commerce.^ Hitherto, howev-
er, it has remained a dormant power, from the many
1 This opinion is not peculiar to Mr. Webster. It was maintained by
the late Hon. vSamuel Dexter, one of the ablest state:jmen and lawyers,
who have adorned the annals of our country.
2 The Federalist, No. 42.
CH. XVII.] POWERS OF CONGRESS -WEIGHTS, &:c. 21
difficulties attendant upon the subject, although it has
been repeatedly brought to the attention of congress in
most elaborate reports.^ Until congress shall fix a
standard, the understanding seems to be, that the states
possess the power to fix their own weights and meas-
ures ; ^ or, at least, the existing standards at the adop-
tion of the constitution remain in full force. Under the
confederation, congress possessed the like exclusive
power.^ In England, the power to regulate w^eights and
measures is said by Mr. Justice Blackstone to belong to
the royal prerogative.^ But it has been remarked by a
learned commentator on his work, that the power can-
not, wdth propriety, be referred to the king's prerogative ;
for, from Magna Charta to the present time, there are
above twenty acts of parliament to fix and establish the
standard and uniformity of weights and measures.^
^ 1118. The next power of congress is, " to provide
"for the punishment of counterfeiting the securities and
"current coin of the United States." This power
would naturally flow, as an incident, from the antece-
dent powers to borrow^ money, and regulate the coinage ;
and, indeed, without it those powers would be without
any adequate sanction. This power would seem to be
exclusive of that of the states, since it grows out of the
constitution, as an appropriate means to carry into
effect other delegated powders, not antecedently exist-
ing in the states.^
1 Among these, none are more elaborate and exact, than that of Mr.
Jefferson and Mr. J. Q,. Adams, while they were respectively at the
head of the department of state.
2 Rawle on the Constitution, ch. 9, p. 102. 3 Art. 9.
4 1 Black. Comm. 270.
5 1 Black. Comm. 276; Christian's note, (16.)
6 See Rawle on Constitution, ch. 9, p. JO-'J; The Federalist, No. 42.
22 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XVIII.
POWER TO ESTABLISH POST-OFFICES AND POST-
ROADS.
§ 1119. The next power of congress is, "to estab-
"lish post-offices and post-roads." The nature and
extent of this power, both theoretically and practically,
are of great importance, and have given rise to much
ardent controversy. It deserves, therefore, a delibe-
rate examination. It was passed over by the Federalist
with a single remark, as a power not likely to be dis-
puted in its exercise, or to be deemed dangerous by its
scope. The "power," says the Federalist, "of estab-
Ushing post-roads must, in every view, be a harmless
power ; and may, perhaps, by judicious management,
become productive of great pubhc conveniency. No-
thing, which tends to faciUtate the intercourse between
the states, can be deemed unworthy ol the public care." ^
One cannot but feel, at the present time, an inclination
to smile at the guarded caution of these expressions,
and the hesitating avowal of the importance of the pow-
er. It affords, perhaps, one of the most striking proofs,
how much the growth and prosperity of the country
have outstripped the most sanguine anticipations of our
most enlightened patriots.
^ 1120. The post-office establishment has already
become one of the most beneficent, and useful estab-
hshments under the national government.^ It circulates
intelligence of a commercial, political, intellectual, and
1 The Federalist, No. 42.
2 1 Tuck. Black. Comm. App. 265; Rawle on the Const, ch. 9, p. 103.
CH. XVIII.] POWERS OF CONGRESS - POST-OFFICE. 23
private nature, with incredible speed and regularity. It
thus administers, in a very high degree, to the comfort,
the interests, and the necessities of persons, in every
rank and station of life. It brings the most distant
places and persons, as it were, in contact with each
other ; and thus softens the anxieties, increases the en-
joyments, and cheers the solitude of millions of hearts.
It imparts a new influence and impulse to private
intercourse ; and, by a wider diff'usion of knowledge,
enables political rights and duties to be performed with
more uniformity and sound judgment. It is not less
effective, as an instrument of the government in its own
oi)erations. In peace, it enables it without ostentation
or expense to send its orders, and direct its measures
for the public good, and transfer its funds, and apply its
powers, with a facility and promptitude, which, compared
with the tardy operations, and imbecile expedients of
former times, seem like the wonders of magic. In
war it is, if possible, still more important and useful,
communicating intelligence vital to the movements of
armies and navies, and the operations and duties
of warfare, with a rapidity, which, if it does not always
ensure victory, at least, in many instances, guards
against defeat and ruin. Thus, its influences have be-
come, in a public, as well as private view, of incalculable
value to the permanent interests of the Union. It
is obvious at a moment's glance at the subject, that the
establishment in the hands of the states would have
been wholly inadequate to these objects ; and the im-
practicability of a uniformity of system would have
introduced infinite delays and inconveniences ; and
burthened the mails with an endless variety of vexa-
tious taxations, and regulations. No one, accustomed
to the retardations of the post in passing through inde-
24 CONSTITUTION OF THE U. STATES. [bOOK III.
pendent states on the continent of Europe, can fail to
appreciate the benefits of a power, which pervades the
Union. The national government is that alone, which
can safely or effectually execute it, with equal prompti-
tude and cheapness, certainty and uniformity. Already
the post-office estabhshment realizes a revenue exceed-
ing two millions of dollars, from which it defrays all its
ow^n expenses, and transmits mails in various directions
over more than one hundred and twenty thousand miles.
It transmits intelligence in one day to distant places,
which, when the constitution was first put into opera-
tion, was scarcely transmitted through the same distance
in the course of a week.^ The rapidity of its movements
has been in a general view doubled within the last
twenty years. There are now more than eight thou-
sand five hundred post-olfices in the United States ;
and at every session of the legislature new routes are
constantly provided for, and new^ post-ofiices estabUsh-
ed. It may, therefore, w^ell be deemed a most benefi-
J In the American Almanac and Repository published at Boston, in
1830, (a very valuable publication,) there is, at page 217, a tabular view
of the number of post-offices, and amounts of postage, and net revenue
and extent of roads in miles travelled by the mail for a large number of
years between 1790 and 1828. In 1790 there were seventy-five post-
offices, and the amount of postage was $37,935, and the number of miles
travelled was 1875. In 1828 there were 7530 post-offices, and the
amount of postage was $1,659,915, and the number of miles travelled
was 115,176. See also American Almanac for 1832, p. 134. And from
Dr. Lieber's Encyclopfedia Americana, (article Posts,) it appears, that in
1S31, the amount of postage was $1,997,811, and the number of miles
travellod 15,468,692. The first post-office, ever established in America,
seems to have been under an act of parliament, in 1710. Dr. Lieber's
Encyc. Amer. article Posts.
In Mr. Professor Malkin's introductory Lecture on History, before the
London University, in March, 1830, he states, (p. 14,) " It is understood,
that in England the first mode adopted for a proper and regular con-
veyance of letters was in 1642, weekly, and on horseback to every part
of the kingdom. The present improved system by mail-coaches was
not introduced until 1782."
CH. XVIII.] POWERS OF CONGRESS - POST-OFFICE. 25
cent power, whose operations can scarcely be applied,
except for good, and accomplish in an eminent degree
some of the high purposes set forth in the preamble
of the constitution, forming a more perfect union, pro-
viding for the common defence, and promoting the gen-
eral welfare.
^ 1121. Under the confederation, (art. 9,) congress
was invested with the sole and exclusive power of
" establishing and regulating post-offices /ro?7z one state
to another throughout the United States, and exacting
such postage on the papers passing through the same,
as may be requisite to defray the expenses of the said
office." ^ How htUe was accomplished under it will be
at once apparent from the fact, that there were but
seventy -five post-offices established in all the United
States in the year 1789; that the whole amount of
postage in 1790 was only $37,935 ; and the number
of miles travelled by the mails only 1875.^ This may
be in part attributable to the state of the country, and
the depression of all the commercial and other interests
of the country. But the power itself was so crippled
by the confederation, that it could accompUsh litde. The
national government did not possess any power, except
to establish post-offices from state to state, (leaving per-
haps, though not intended, the whole interior post-
offices in every state to its own regulation,) and the
postage, that could be taken, was not allowed to be be-
1 There is, in Bioren and Duane's Edition of the Laws of the
United States, (Vol. 1, p. 649, &c.) an account of the post-office estab-
lishment, during the revolution and before the constitution was adopted.
Dr. Franklin was appointed in July, 1775, the first Postmaster General.
The act of 1782 directed, that a mail should be carried at least once in
every week to and from each stated post-office.
2 American Almanac, IS^iO, p. 217 ; Dr. Lieber's Encyc. Amer. article
Post^, ante, vol. iii. p. 24, note.
VOL. III. 4
26 CONSTITUTION OF THE U. STATES. [bOOK III.
yond the actual expenses ; thus shutting up the avenue
to all improvements. In short, like every other power
under the confederation, it perished from a jealousy,
which required it to live, and yet refused it appropriate
nourishment and sustenance.^
§ 1122. In the first draft of the constitution, the
clause stood thus, " Congress shall have power to estab-
lish post-ofRces." It w^as subsequently amended by
adding the words "and post-roads," by the vote of six
states against five ; and then, as amended, it passed
without opposition.^ It is observable, that the confed-
eration gave only the power to establish and regulate
post-offices ; and therefore the amendment introduced
a new and substantive power, unknown before in the
national government.
§ 1123. Upon the construction of this clause of the
constitution, two opposite opinions have been express-
ed. One maintains, that the power to establish post-
offices and post-roads can intend no more, than the
power to direct, where post-offices shall be kept, and
on what roads the mails shall be carried." Or, as it
has been on other occasions expressed, the power to
establish post-roads is a power to designate, or point out,
what roads shall be mail-roads, and the right of passage
or way along them, when so designated.^ The other
maintains, that although these modes of exercising the
power are perfectly constitutional ; yet they are not the
whole of the power, and do not exhaust it. On the
contrary, the power comprehends the right to make, or
construct any roads, which congress may deem proper
1 See Sergeant on Const. Introduction, p. 17, f'2d Edition.)
2 Journal of Convention, 2Q0, 256, 257, 2tjl, 357.
3 4 Elliot's Debates, 279.
4 4 Elliot's Debates, 354 ; Ibid. 233.
CH. XVIII.] POWERS OF CONGRl^SS - MOST-01 FICi:. 27
'or th3 conveyance of the mail, and to keep them in
due repair for such purpose.
§ 1124. The grounds of the former opinion seem to
be as follows. The power given under the confedera-
tion never practically received any other construction.
Congress never undertook to make any roads, but mere-
ly designated those existing roads, on which the mail
should pass. At the adoption of the constitution there
is not the slightest evidence, that a difterent arrange-
ment, as to the hmits of the power, was contemplated.
On the contrary, it was treated by the Federalist, as a
harmless power, and not requiring any comment.^ The
practice of the government, since the adoption of the
constitution, has conformed to this view. The first act
passed by congress, in 1792, is entitled "an act to es-
tablish post-otRces and post-roads." The first secdon
of this act estabhshed many post-offices as well as post-
roads. It was continued, amended, and finally repeal-
ed, by a series of acts from 1792 to 1810 ; all of which
acts have the same title, and the same provisions de-
claring certain roads to be post-roads. From all of
which it is manifest, that the legislature supposed, that
they had estabhshed post-roads in the sense of the
constitution, when they declared certain roads, then in
existence, to be post-roads, and designated the routes,
along which the mails were to pass. As a farther proof
upon this subject, the statute book contains many acts
passed at various times, during a period of more than
twenty years, discontinuing certain post-roads.^ A
strong argument is also derivable from the practice of
continental Europe, which must be presumed to have
been known to the framers of the constitution. Different
1 The Federalist, No. 42. 2 4 Elliot's Debates, 354.
28 CONSTITUTION OF THE V. STATES. [bOOK III.
nations in Europe have established posts, and for mutual
convenience have stipulated a free passage for the posts
arriving on their frontiers through their territories. It
is probable, that the constitution intended nothing more
by this provision, than to enable congress to do by law,
without consulting the states, what in Europe can be
done only by treaty or compact. It was thought
necessary to insert an express provision in the consti-
tution, enabHng the government to exercise jurisdiction
over ten miles square for a seat of government, and of
such places, as should be ceded by the states for forts,
arsenals, and other similar purposes. It is incredible,
that such sohcitude should have been expressed for such
inconsiderable spots, and yet, that at the same time,
the constitution intended to convey by implication the
power to construct roads throughout the whole coun-
try, with the consequent right to use the timber and soil,
and to exercise jurisdiction over them. It may be
said, that, unless congress have the power, the mail-
roads might be obstructed, or discontinued at the will of
the state authorities. But that consequence does not
follow ; for when a road is declared by law to be a
mail-road, the United States have a right of way over
it ; and, until the law is repealed, such an interest in the
use of it, as that the state authorities could not obstruct
it.^ The terms of the constitution are perfectly satis-
fied by this limited construction, and the power of con-
gress to make whatever roads they may please, in any
state, would be a most serious inroad upon the rights
and jurisdiction of the states. It never could have been
contemplated.^
1 4 Elliot's Debates, 354, 355.
2 Aware of the difficulties attendant upon this extremely strict con-
struction, another has been attempted, whicli is more liberal, but which
CH. XVIII.] POWERS OF CONGRESS-POST-OFFICE. 29
§ 1125. The grounds, upon which the other opinion
is maintained, are as follows: This is not a question
of implied power ; but of express power. We are
it has been thought (as will be hereafter seen) to surrender the eub-
stance of the argument. It will be most satisfactory to give it in the
very words of its most distinguished advocate :
" The first of these grants is in the following words : ' Congress shall
*have power to establish post-offices and post- roads.' What is the just
import of these words, and the extent of the grant ? The word * establish '
is the ruling term ; ' post-offices and post-roads ' are the subjects, on
which it acts. The question, therefore, is, what power is ganted by
that word ? The sense, in which words are commonly used, is that, in
which they are to be understood in all transactions between public
bodies and individuals. The intention of the parties is to prevail, and '
there is no better way of ascertaining it, than by giving to the terms
used their ordinary import. If we were to ask any number of our most
enlightened citizens, Avho had no connexion with public affairs, and
whose minds were unprejudiced, what was the import of the word ' es-
tablish,' and the extent of the grant, which it controls, we do not think,
that there would be any difference of opinion among them. We are
satisfied, that all of them would answer, that a power was thereby given
to congress to fix on the towns, court-houses, and other places, through-
out our Union, at which there should be post-offices ; the routes, by
which the mails should be carried from one post-office to another, so as
to diffuse intelligence as extensively, and to make the institution as use-
ful, as possible ; to fix the postage to be paid on every letter and packet
thus carried to support the establisliment ; and to protect the post-offices
and mails from robbery, by punishing those, who should commit the
offence. The idea of a right to lay off the roads of the United States, on
a general scale of improvement ; to take the soil from the proprietor by
force ; to establish turnpikes and tolls, and to punish offenders in the
manner stated above, would never occur to any such person. The use
of the existing road, by the stage, mail-carrier, or post-boy, in passing
over it, as others do, is all, that would be thought of; the jurisdiction and
soil remaining to the state, with a riglit in the state, or those authorized
by its legislature, to change the road at pleasure.
" The intention of the parties is supported by other proof, wjjich ought
to place it beyond all doubt. In the former act of government, (the con-
federation,) we find a grant for the same purpose, expressed in the fol-
lowing words: "The United States, in congress assembled, shall have
the sole and exclusive right and power of establishing and regulating
post-offices from one state to another, througliout the United States, and
of exacting such postage on the papers passing through the same, as
30 CONSTITUTIOIS OF THE U. STATES. [bOOK III.
not now looking to what are properly incidents, or
means to carry into effect given powers ; but are to
construe the terms of an express, po\yer. The words o:"
may be requisite to defray the expenses of the said post-office.' The
term ' establish ' was likewise the rulin.i^ one, in that instrument, and
was evidently intended, and understood, to give a power simply and
solely to fix where there should be post-offices. By transferring this
term from the confederation into the constitution, it was doubtless in-
tended, that it should be understood in the same sense in the latter, that
it was in the former instrument, and to be applied alike to post-offices
and post-roads. In whatever sense it is applied to post-offices, it must
be applied in the same sense to post-roads. But it may be asked, if
such was the intention, why were not all the other terms of the grant
transferred with it ? The reason is obvious. The confederation being
a bond of union between independent states, it was necessary, in grant-
ing the powers, which were to be exercised over them, to be very ex-
plicit and minute in defining the powers granted. But the constitu-
tion, to the extent of its powers, having incorporated the states into
one government, like the government of the states, individually, fewer
words, in defining the powers granted by it, were not only adequate,
but perhaps better adapt 'd to the purpose. We find, that brevity is a
characteristic of the instrument. Had it been intended to convey a
more enlarged power in the constitution, than had been granted in the
confederation, surely the same controlling term would not have been
used ; or other words would have been added, to show such intention,
and to mark the extent, to which the power should be carried. It is a
liberal construction of the powers granted in the constitution, by this
term, to include in it all the powers, that were granted in the confeder-
ation by terms, which specifically defined, and (as was supposed) ex
tended their limits. It would be absurd to say, that, by omitting from
the constitution any portion of the phraseology, which was deemed im-
portant in the confederation, the import of that term was enlarged, and
with it the powers of the constitution, in a proportional degree, beyond
what they were in the confederation. The right to exact postage and
to protect the post-offices and mails from robbery, by punishing the
offenders, may fairly be considered, as incidents to the grant, since, with-
out it, the object of the grant might be defeated. Whatever is abso-
lutely necessary to the accomplishment of the object of the grant, though
not specified, may fairly be considered as included in it. Beyond this
the doctrine of incidental power cannot be carried.
" If we go back to the origin of our settlements and institutions, and
trace their progress down to the Revolution, we shall see, that it was in
this sense, and in none other, that the power was exercised by all our
CH. XVIII.] POWERS OF CONGRESS -POST-OFl ICE. 31
the constitution are , "Congress shall have power to
" establish post-otlices and post-roads." What is the
true meaning of these words ? There is no such known
colonial governments. Post-offices were made for the country, and not
the country for them. They are the offspring of improvement. They
never go before it. Settlements are first made ; after which the pro-
gress is uniform and simple, extending to objects in regular order, most
nece:5sary to the comfort of man ; schools, places of public worship,
court-houses, and markets ; post-offices follow. Roads may, indeed, be
said to be coeval with settlements. They lead to all the places mention-
ed, and to every other, which the various and complicated interests of
society require.
" It is believed, that not one example can be given, from the first set-
tlement of our country to the adoption of this constitution, of a post-
office being established, without a view to existing roads; or of a single
road having been made by pavement, turnpike, <!s:c. for the sole purpose
of accommodating a post-office. Such, too, is the uniform progress of
all societies. In granting then this power to the United States, it was,
undoubtedly, intended by the framers and ratifiers of the constitution, to
convey it in the sense and extent only, in which it had been under-
stood and exercised by the previous authorities of the country.
"This conclusion is confirmed by the object of the grant and the
manner of its execution. The object is the transportation of the mail
throughout the United States, which may be done on horse-back, and
was so done, until lately, since the establishment of stages. Between
the great towns, and in other places, where the population is dense,
stages are preferred, because they afford an additional opportunity to
make a profit from passengers. But where the population is sparse,
and on cross roads, it is generally carried on horseback. Unconnected
with passengers and other objects, it cannot be doubted, that the mail
itself may be carried in every part of our Union, with nearly as much
economy, and greater despatch, on horseback, than in a stage ; and in
many parts with much greater. In every part of thp Union, in which
stages can be preferred, the roads are sufficiently good, provided those,
which serve for every other purpose, will accommodate them. In every
other part, where horses alone are used, if other people p^iss them on
horseback, surely the mail-carrier can. For an object so simple and so
easy in the execution, it would, doubtless, excite surprise, if it shouhl be
thought proper to appoint commissioners to lay off the country on a great
scheme of improvement, with the power to shorten distances, reduce
heights, h'vel mountains, and pave surfaces.
"If the United States possessed the power contended for under this
grant, might they not, in adopting the roads of the individual states for
32 CONSTITUTION OF THE U. STATES. [bOOK III.
sense of the word " establish," as to " direct," " desig-
nate," or " point out." And if there were, it does not
follow, that a special or peculiar sense is to be given to
the words, not conformable to their general meaning, un-
less that sense be required by the context, or, at least,
better harmonizes with the subject matter, and objects
of die power, than any other sense. That cannot be
pretended in the present case. The received general
meanings, if not the only meanings of the word " estab-
lish," are, to settle firmly, to confirm, to fix, to form or
modify, to found, to build firmly, to erect permanently.^
x\nd it is no small objection to any construction, that it
requires the word to be deflected from its received and
usual meaning ; and gives it a meaning unknown to,
and unacknowledged by lexicographers. Especially is
it objectionable and inadmissible, where the received
and common meaning harmonizes with the subject mat-
ter ; and if the very end w^ere required, no more exact
expression could ordinarily be used. In legislanve
acts, in state papers, and in the constitution itself, the
word is found with the same general sense now insisted
on ; that is, in the sense of, to create, to form, to make,
to construct, to settle, to build up with a view to per-
manence. Thus, our treaties speak of estabUshing reg-
the carriage of the mail, as has been done, assume jurisdiction over
them, and preclude a right to interfere with or alter them ? Might they
not establish turnpikes, and exercise all the othei- acts of sovereignty,
above stated, over such roads, necessary to protect them from injury,
and defray the expense of repairing them ? Surely, if the right exists,
these consequences necessarily followed, as soon as the road was estab-
lished. The absunlity of such a pretension must be apparent to all, who
examine it. In this way, a large portion of the territory of every state
might be taken from it ; for there is scarcely a road in any stale, which
will not be used for the transportion of the mail. A new field for legis-
lation and internal government would thus be opened." President Mon-
roe's Message, of 4th May, 18*22, p. 24 to 27.
I Johnson's Diet, nd verb. ; Webster's Diet. ibid.
CH. XVIII.] POWERS OF CONGRESS - POST-OFFICE. 33
ulations of trade. Our laws speak of estahlishmg navy-
hospitals, where land is to be purchased, work done,
and buildings erected ; of establishing trading-houses
with the Indians, where houses are to be erected and
other things done. The word is constantly used in a
hke sense in the articles of confederation. The authori-
ty is therein giv^en to congress of establishing rules in
cases of captures ; of establishing courts of appeal in
cases of capture ; and, what is directly in point, of
establishing and regulating post-offices. Now, if the
meaning of the word here was simply to point out, or
designate post-offices, there would have been an end
of all further authority, except of regulating the post-
offices, so designated and pointed out. Under such
circumstances, how could it have been possible under
that instrument (which declares, that every power not
expressly delegated shall be retained by the states) to
find any authority to carry the mail, or to make con-
tracts for this purpose? much more to prohibit any other
persons under penalties from conveying letters, des-
patches, or other packets from one place to another of
the United States ? The very first act of the conti-
nental congress on this subject was, " for establishing a
post," (not a post office ;) and it directed, " that a fine
of posts be appointed under the direction of the post-
master general, from Falmouth, in New-England, to
Savannah, in Georgia, with as many cross-posts, as he
shall think fit ; " and it directs the necessary expenses
of the " establishment " beyond the revenue to be paid
out by the United Colonies.^ Under this, and other sup-
plementary acts, the establishment continued until Oc-
tober, 1782, when, under the articles of confederation,
1 Ordinance of 26th July 1775; 1 Journal of Congress, 177, 178.
VOL. III. O
34 CONSTITUTION OF THE U. STATES. [bOOK III.
the establishment was re-organized, and, instead of a
mere appointment and designation of post-offices, pro-
vision was made, " that a continued communication of
posts throughout the United States shall be established
and maintained," &c. ;. and many other regulations
were made wholly incompatible with the narrow con-
struction of the words now contended for.^
§ 1126. The constitution itself also uniformly uses
the word " estabhsh " in the general sense, and never
in this peculiar and narrow sense. It speaks in the
preamble of one motive being, " to establish justice,"
and that the people do ordain and establish this con-
stitution. It gives power to establish an uniform rule
of naturalization and uniform laws on the subject of
bankruptcies. Does not this authorize congress to
make, create, form, and construct laws on these sub-
jects? It declares, that the judicial power shall be vested
in one supreme court and in such inferior courts, as
congress may, from time to time, ordain and establish.
Is not a power to establish courts a power to create, and
make, and regulate them ? It declares, that the ratifi-
cation of nine states shall be sufficient for the establish-
ment of this constitution between the states so ratifying
the same.^ And in one of the amendments, it pro-
vides, that congress shall make no law respecting an
establishment of religion. It is plain, that to construe
the word in any of these cases, as equivalent to desig-
nate, or point out, would be absolutely absurd. The
clear import of the word is, to create, and form, and fix
in a settled manner. Referring it to the subject mat-
ter, the sense, in no instance, can be mistaken. To
1 Ordinance, 18 Oct. 1782 ; 1 U. S. Laws, (Bioren & Duane,) 651 ;
7 Journ. of Congress, 503.
2 See 4 Elliot's Debates, 356.
CH. XVIII.] POWERS OF CONGRESS-POST-OFFICE. 35
establish courts is to create, and form, and regulate them.
To establish rules of naturalization is to frame and con-
firm such rules. To establish laws on the subject of
bankruptcies is to frame, fix, and pass them. To
establish the constitution is to make, and fix, and erect
it, as a permanent form of government. In the same
manner, to establish post-ofiices and post-roads is to
frame and pass laws, to erect, make, form, regulate, and
preserve them. Whatever is necessary, whatever is
appropriate to this purpose, is within the power.
§ 1127. Besides; upon this narrow construction,
what becomes of the power itself? If the power be to
poiiit out, or designate post-offices, then it supposes, that
there already exist some offices, out of which a desig-
nation can be made. It supposes a power to select
among things of the same nature. Now, if an office
does not already exist at the place, how can it be de-
signated, as a post-office? If you cannot create a
post-office, you can do no more, than mark out one
already existing. In short, these rules of strict con-
struction might be pressed still farther; and, as the
power is only given to designate, not offices, but post-
offices, the latter must be already in existence ; for
otherwise the power must be read, to designate what
offices shall be used, as post-offices, or at what places
post-offices shall be recognised ; either of which is a
departure from the supposed literal interpretation.
§ 1128. In the next place, let us see, what upon this
narrow interpretation becomes of the power in another
aspect. It is to establish post-offices. Now, the argu-
ment supposes, that this does not authorize the pur-
chase or erection of a building for an office ; but it does
necessarily suppose the authority to erect or create an
office ; to regulate the duties of the officer ; and to fix
36 CONSTITUTION OF THE U. STATES. [bOOK III.
a place, (pffidna) where his business is to be performed.
It then unavoidably includes, not merely a power to
designate, but a power to create the thing intended,
and to do all other acts to make the thing effectual ; that
is, to create the whole system appropriate to a post-
office estabhshment. Now, this involves a plain depar-
ture from the very ground of the argument. It is no
longer a power to designate a thing, or mark out a
route ; but it is a power to create, and fix every other
thing necessary and appropriate to post-offices. The
argument, therefore, resorts to implications in order to
escape from its own narrow interpretation ; and the
very power to designate becomes a power to create
offices and frame systems, and institute penalties, and
raise revenue, and make contracts. It becomes, in
fact, the very thing, which the other argument sup-
poses to be the natural sense, viz. the power to erect,
and maintain a post-office estabhshment.
§ 1129. Under any other interpretation, the power
itself would become a mere nullity. If resort be had to
a very strict and critical examinauon of the words, the
power " to establish post-offices " imports no more,
than the power to create the offices intended ; that
done, the power is exhausted ; and the words are sat-
isfied. The power to create the office does not neces-
sarily include the power to carry the mail, or regulate
the conveyance of letters, or employ carriers. The
one may exist independently of the other. A state
might without absurdity possess the right to carry the
mail, while the United States might possess the right to
designate the post-offices, at which it should be opened,
and provide the proper officers ; or the converse powd-
ers might belong to each. It would not be impractica-
ble, though it would be extremely inconvenient and
CH. XVIII.] POWERS OF CONGRESS-POST-OFFICE. 37
embarrassing. Yet, no man ever imagined such a con-
struction to be justifiable. And why not? Plainly,
because constitutions of government are not instruments
to be scrutinized, and weighed, upon metaphysical or
grammatical niceties. They do not turn upon ingen-
ious subtleties ; but are adapted to the business and
exigencies of human society ; and the powers given
are understood in a large sense, in order to secure the
public interests. Common sense becomes the guide,
and prevents men from dealing with mere logical ab-
stractions. Under the confederation, this very power
to establish post-offices was construed to include the
other powers already named, and others far more re-
mote. It never entered into the heads of the wise
men of those days, that they possessed a power to
create post-offices, without the power to create all the
other things necessary to make post-offices of some
human use. They did not dream of post-offices with-
out posts, or mails, or routes, or carriers. It would have
been worse than a mockery. Under the confedera-
tion, with the strict hmitation of powers, which that in-
strument conferred, they put into operation a large
system for the appropriate purposes of a post-office
establishment.^ No man ever doubted, or denied the
constitutionality of this exercise of the power. It was
largely construed to meet the obvious intent, for which
it was delegated. The words of the constitution are
more extensive, than those of the confederation. In
the latter, the words to establish "post-roads " are not
to be found. These words were certainly added for
some purpose. And if any, for what other purpose,
than to enable congress to lay out and make roads ? ^
1 See Act of 18th of October, 1782.
2 4 Elliot's Debates, 356.
38 CONSTITUTION OF THE U. STATES. [bOOk'hI.
§ 1130. Under the constitution congress has, with-
out any questioning, given a liberal construction to the
power to establish post-offices and post-roads. It has
been truly said, that in a strict sense, " this power is
executed bv the sinH;le act of makins; the establishment.
But from this has been inferred the power and duty of
carrying the mail along the post-road from one post-
office to another. And from this implied power has
been again inferred the right to punish those, who steal
letters from the post-office, or rob the mail. It may
be said with some plausibility, that the right to carry
the mail, and to punish those, who rob it, is not indis-
pensably necessary to the establishment of a post-office
and a post-road. This right is indeed essential to the
beneficial exercise of the power ; but not indispensably
necessary to its existence." ^
^ 1131. The whole practical course of the govern-
ment upon this subject, from its first organization down
to the present time, under every administration, has
repudiated the strict and narrow construction of the
words above mentioned.^ The power to establish post-
offices and post-roads has never been understood to
include no more, than the power to point out and de-
signate post-offices and post-roads. Resort has been
constantly had to the more expanded sense of the word
" establish ;" and no other sense can include the objects,
which the post-office laws have constantly included.
Nay, it is not only not true, that these laws have stop-
ped short of an exposition of the words sufficiently
broad to justify the making of roads; but they have in-
cluded exercises of power far more remote from the
1 MCulloch V. Maryland, 4 Wheat. R. 316, 417.
2 vSee the laws referred to in Post-Master- General v. Early, 12 Wheat.
R. 136, 144, 145.
CH. XVIII.] POWERS OF CONGRESS-POST-OFFICE. 39
immediate objects. If the practice of the government
is, therefore, of any weight in giving a constitutional
interpretation, it is in favour of the liberal interpretation
of the clause.
§ 1132. The fact, if true, that congress have not
hitherto made any roads for the carrying of the mail,
would not affect the right, or touch the question. It is
not doubted, that the power has been properly carried
into effect, by making certain state roads post-roads.
When congress found those roads suited to the pur-
pose, there could be no constitutional reason for refus-
ing to establish them, as mail-routes. The exercise of
authority was clearly within the scope of the power.
But the argument would have it, that, because this ex-
ercise of the power, clearly within its scope, has been
hitherto restrained to making existing roads post-roads,
therefore congress cannot proceed constitutionally to
make a post-road, where no road now exists. This is
clearly what lawyers call a 7ion sequitur. It might with
just as much propriety be urged, that, because con-
gress had not hitherto used a particular means to exe-
cute any other given power, therefore it could not now
do it. If, for instance, congress had never provided a
ship for the navy, except by purchase, they could not
now authorize ships to be built for a navy, or a con-
verso. If they had not laid a tax on certain goods, it
could not now be done. If they had never erected a
custom-house, or court-house, they could not now do
it. Such a mode of reasoning would be deemed
by all persons wholly indefensible.
§ 1133. But it is not admitted, that congress have
not exercised this very power with reference to this
very object. By the act of 21st of April, 1806, (ch. 41,)
the president was authorized to cause to be opened a
40. CONSTITUTION OF THE V. STATEl^. [bOOK III.
road from the frontier of Georgia, on the route from
Athens to New-Orleans ; and to cause to be opened a
road or roads through the territory, then lately ceded
by the Indians to the United States, from the river
Mississippi to the Ohio, and to the former Indian boun-
dary line, which was established by the treaty of Green-
ville ; and to cause to be opened a road from Nashville,
in the state of Tennessee, to Natchez, in the Missis-
sippi territory. The same remark applies to the act of
29th of March, 1806, (ch. 19,) "to regulate the laying
"out and making a road from Cumberland, in the state
"of Maryland, to the state of Ohio." Both of these
acts were passed in the administration of President
Jefferson, who, it is well known, on other occasions
maintained a strict construction of the constitution.
^ 1 134. But passing by considerations of this nature,
why does not the power to estabhsh post-offices and
post-roads include the power to make and construct
them, when wanted, as well as the power to establish a
navy -hospital, or a custom-house, a power to make and
construct them? The latter is not doubted by any
persons ; why then is the former? In each case, the
sense of the ruling term " establish " would seem to be
the same ; in each, the power may be carried into effect
by means short of constructing, or purchasing the things
authorized. A temporary use of a suitable site or
buildings may possibly be obtained with, or without
hire. Besides ; why may not congress purchase, or
erect a post-office building, and buy the necessary
land, if it be in their judgment advisable? Can there
be a just doubt, that a power to establish post-offices
includes this power, just as much, as a power to estab-
lish custom-houses would to build the latter? Would
it not be a strange construction to say, that the abstract
CH. XVIII.] POWERS OF CONGRESS -rOST-UOAlJS. 41
office might be created, but not the ollicina, or place,
where it could be exercised ? There are many places
peculiarly fit for local post-offices, where no suitable
building might be found. And, if a power to construct
post-office buildings exists, where is the restraint upon
constructing roads ?
§ 1135. It is said, that there is no reason, why con-
gress should be invested with such a power, seeing
that the state roads may, and will furnish convenient
routes for the mail. When the state-roads do furnish
such routes, there can certainly be no sound policy in
congress making other routes. But there is a great dif-
ference between the policy of exercising a power, and
the right of exercising it. But, suppose the state-roads
do not furnish (as in point of fact they did not at the
time of the adoption of the constitution, and as here-
after, for many exigencies of the government in times
of war and otherwise, they may not) suitable routes for
the mails, what is then to be done ? Is the power of
the general government to be paralyzed ? Suppose a
mail-road is out of repair and founderous, cannot con-
gress authorize the repair of it ? If they can, why then
not make it originally ? Is the one more a means to an
end, than the other? If not, then the power to carry
the mails may be obstructed ; nay, may be annihilated
by the neglect of a state.^ Could it have been the in-
tention of the constitution, in the exercise of this most
vital power, to make it dependent upon the will, or
the pleasure of the states ?
§ 1136. It has been said, that when once a state-
road is made a post-road by an act of congress, the
national government have acquired such an interest in
.1 4 Elliot's Debates, 356.
VOL.111. 6
42 CONSTITUTION OF THE U. STATES. [bOOK III,
the use of it, that it is not competent for the state
authorities to obstruct it. But how can this be made
out 1 If the power of congress is merely to select or
designate the mail-roads, what interest in the use is
acquired by the national government any more, than by
any travellers upon the road 1 Where is the power
givea to acquire it ? Can it be pretended, that a state
may not discontinue a road, after it has been once
estabUshed, as a mail-road? The power has been
constantly exercised by the states ever since the adop-
tion of the constitution. The states have altered, and
discontinued, and changed such roads at their plea-
sure. It would be a most truly alarming inroad upon
state sovereignty to declare, that a state-road could
never be altered or discontinued after it had once be-
come a mail-road. That would be to supersede all state
authority over their own roads. If the states can dis-
continue their roads, why not obstruct them 1 Who
shall compel them to repair them, when discontinued,
or to keep them at any time in good repair? No one
ever yet contended, that the national government pos-
sessed any such compulsive authority. If, then, the
states may alter or discontinue their roads, or suffer
them to go out of repair, is it not obvious, that the
power to carry the mails may be retarded or defeated
in a great measure by this constitutional exercise of
state power? And, if it be the right and duty of con-
gress to provide adequate means for the transportation
of the mails, wherever the public good requires it, what
limit is there to these means, other than that they are
appropriate to the end ? ^
1 4 Elliot's Debates, 356.
CH. XVlir.] POWERS OF CONGRESS - POST-ROADS. 43
§ 1137. In point of fact, congress cannot be said, in
any exact sense, to have yet executed the })ower to
establish post-roads, if hy that power we ai'e to under-
stand the designation oi' particular state-roads, on which
ihe mails shall be carried. The general course has
been to designate merely the towns, between Avhich
the mails shall be carried, without ascertaining the par-
ticular roads at all. Thus, the Act of 20th of February,
1792, ch. 7, (which is but a sample of the other acts,)
declares, that "the following roads be established, as post-
roads, namely, from Wiscasset in the District of Maine to
Savannah in Georgia, by the following route, to wit :
Portland, Portsmouth, Newburyport, Ipswich, Salem,
Boston, Worcester," &c. &c. ; without pointing out
any road between those places, on which it should be
carried. There are different roads from several of
these places to the others. Suppose one of these
roads should be discontinued, could the mail-carriers
insist upon travelling it ?
^ 1138. The truth is, that congress have hitherto
acted under the power to a very limited extent only ;
and will forever continue to do so from principles
of public policy and economy, except in cases of
an extraordinary nature. There can be no motive to
use the power, except for the public good ; and cir-
cumstances may render it indispensable to carry it out
in particular cases to its full hmits. It has already oc-
curred, and may hereafter occur, that post-roads may
be important and necessary for the purpose of the
Union, in peace as well as in war, between places,
where there is not any good state-road, and where
the amount of travel would not justify any state in an
expenditure equal to the construction of such a state-
44 CONSTITUTION OF THE U. STATES. [bOOK III.
road.^ In such cases, as the benefit is for the Union, the
burthen ought to be borne by the Union. Without any
invidious distinction, it may be stated, that the winter
mail-route between Philadelphia, and Baltimore, and
Washington, by the Avay of the Susquehannah and
Havre de Grace, has been before congress under this
very aspect. There is no one, who will doubt the im-
portance of the best post-road in that direction ; (the
nearest betw^een the two cities ;) and yet it is obvious,
that the nation alone can be justly called upon to pro-
vide the road.
^ 1 139. Let a case be taken, when state policy or state
hosdlity shall lead the legislature to close up, or discon-
tinue a road, the nearest and the best between two great
states, rivals perhaps for the trade and intercourse of a
third state, shall it be said, that congress has no right
to make, or repair a road for keeping open for the mail
the best means of communication betw^een those states ?
May the nadonal government be compelled to take the
most inconvenient and indirect routes for the mail ? ^
In other w^ords, have the states a power to say, how%
and upon what roads the mails shall, and shall not
travel 1 If so, then in relation to post-roads, the states,
and not the Union, are supreme.
^ 1140. But it is said, that it w^ould be dangerous to
allow any power in the Union to lay out and construct
post-roads ; for then the exercise of the power W'Ould
supercede the state jurisdiction. This is an utter mis-
take. If congress should lay out and construct a post-
road in a state, it would still be a road within the or-
dinary territorial jurisdiction of the state. The state
could not, indeed, supercede, or obstruct, or discon-
1 See Rawle on the Constitution, ch. i), p. 103, 104.
2 4 Elliot's Debates, 356. . .
CH. XVIII.] POWERS OF CONGRESS -POST-ROADS. d5
tinue it, or prevent the Union from repairing it, or the
mails Irom travelling on it. But subject to these inciden-
tal rights, the right of territory and jurisdiction, civilly
and criminally, would be complete and perlect in the
state. The power of congress over the road would be
limited to the mere right of passage and preservation.
That of the state would be general, and embrace all
other objects. Congress undoubtedly has power to
purchase lands in a state for any public purposes, such
as forts, arsenals, and dock-yards. So, they have a
right to erect hospitals, custom-houses, and court-
houses in a state. But no person ever imagined, that
these places were thereby removed from the general
jurisdiction of the state. On the contrary, they are
universally understood for all other purposes, not in-
consistent with the constitutional rights and uses of
the Union, to be subject to state authority and rights.
^ 1141. The clause respecting cessions of territory
for the seat of government, and for forts, arsenals, dock-
yards, &.C. has nothing to do with the point. But if
it had, it is favourable to the power. That clause was
necessary for the purpose of ousting the state jurisdic-
tion in the specified case€, and for vesting an exclusive
jurisdiction in the general government. No general or
exclusive jurisdiction is either required, or would be
useful in regard to post-roads. It would be inconveni-
ent for congress to assemble in a place, where it had
not exclusive jurisdiction. And an exclusive juris-
diction would seem indispensable over forts, arse-
nals, dock-yards, and other places of a like nature.
But surely it will not be pretended, that congress
could not erect a fort, or magazine, in a place within a
state, unless the state should cede the territory. The
only effect would be, that the jurisdiction in such a
46 CONSTITUTION OF THE U. STATES. [bOOK III.
case would not be exclusive. Suppose a state should
prohibit a sale of any of the lands within its boundaries
by its own citizens, for any public purposes indispensa-
ble for the Union, either military or civil, would not
congress possess a constitutional right to demand, and
appropriate land within the state for such purposes,
making a just compensation 1 Exclusive jurisdiction
over a road is one thing ; the right to make it is quite
another. A turnpike company may be authorized to
make a road; and yet may have no jurisdiction, or at
least no exclusive jurisdiction over it.
^ 1142. The supposed silence of the Federalist^
proves nothing. That work was principally designed to
meet objections, and remove prejudices. The post-
office establishment in its nature, and character, and
purposes, was so generally deemed useful and conveni-
ent, and unexceptionable, that it was wholly unneces-
sary to expound its value, or enlarge upon its benefits.
§ 1143. Such is a summary of the principal reason-
ing on each side of this much contested question. The
reader must decide for himself, upon the preponder-
ance of the argument.
§ 1144. This quesdon, as to the right to layout
and construct post-roads, is wholly distinct from that of
the more general power to lay out and make canals,
and military and other roads. The latter power may
not exist at all ; even if the former should be un-
questionable. The latter turns upon a quesdon of
implied power, as incident to given powers.^ The
former turns upon the true interpretadon of words
of express grant. Nobody doubts, that the words
** establish post-roads," may, without violating their re-
1 No. 42. 2 See Rawle on the Constitution, cli. 9, p. 104.
CH. XVIII.] POWERS OF COXGRESS - POST-ROADS. 47
ceived meaning in other cases, be construed so, as to
include the power to lay out and construct roads. The
question is, whether that is the true sense of the words,
as used in the constitution. And here, if ever, the rule
of interpretation, which requires us to look at the na-
ture of the instrument, and the objects of the power,
as a national power, in order to expound its meaning,
must come into operation.
§ 1145. But whatever be the extent of the power,
narrow or large, there will still remain another inquiry,
whether it is an exclusive power, or concurrent in the
states. This is not, perhaps, a very important inquiry,
because it is admitted on all sides, that it can be exer-
cised only in subordination to the power of congress, if
it be concurrent in the states. A learned commentator
deems it concurrent, inasmuch as there seems nothing in
the consdtution, or in the nature of the thing itself, which
may not be exercised by both governments at the same
time, without prejudice or interference ; but subordinate,
because, whenever any power is expressly granted to
congress, it is to be taken for granted, that it is not to
be contravened by the authority of any particular state.
A state might, therefore, establish a post-road, or post-
ofRce, on any route, where congress had not establish-
ed any.^ On the other hand, another learned commen-
tator is of opinion, that the powder is exclusive in con-
gress, so far as relates to the conveyance of letters,
&,c.^ It is highly improbable, that any state will at-
tempt any exercise of the power, considering the diffi-
culty of carrying it into effect, without the co-operation
of congress.
1 1 Tuck. Black. Coram. App. 265.
2 Rawle on the Constitution, ch. 9, p. 103, 104.
48 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XIX.
POWER TO PROMOTE SCIENCE AND USEFUL ARTS.
^ 1 146. The next power of congress is, " to promote
" the progress of science and the useful arts, by secur-
" ing, for limited times, to authors and inventors the
"exclusive right to their respective writings and dis-
"coveries.'*
§ 1147. This power did not exist under the confed-
eration ; and its utility does not seem to have been
questioned. The copyright of authors in their w^orks
had, before the revolution, been decided in Great Britain
to be a common law right ; and it was regulated and
limited under statutes passed by parliament upon that
subject.^ The right to useful inventions seems, with
equal reason, to belong to the inventors ; and, accord-
ingly, it was saved out of the statute of monopolies in
the reign of King James the First, and has ever since
been allowed for a hmited period, not exceeding four-
teen years.^ It was doubdess to this knoAvledge of the
common law and statuteable rights of authors and in-
ventors, that Ave are to attribute this constitution-
al provision.^ It was beneficial to all parties, that the
national government should possess this power ; to
authors and inventors, because, otherwise, they would
have been subjected to the varying laws and systems
of the different states on this subject, which would im-
1 2 Black. Comm.406, 407, and Christian's note, (5); 4 Burr. R.2303 ;
Rawle on Const, ch. 9, p. 105, lOG ; 2 Kent's Comin. Lect. 36, p. 30$,
307,314,315.
2 2 Black. Comm. 407, and Christian's note, (8) ; 4 Black. Comm. 159;
2 Kent's Comm. Lcct. 36, p. 299 to 306.
3 The Federalist, No. 43.
CH. XIX.] POWERS OF CONGRESS -INVENTIONS. 49
pair, and might even destroy the value of their rights ;
to the pubhc, as it would promote the progress of
science and the useful arts, and admit the people at
large, after a vshort interval, to the full possession and
enjoyment of all writings and inventions without re-
straint. In short, the only boon, which could be offered
to inventors to disclose the secrets of their discoveries,
would be the exclusive right and profit of them, as a
monopoly for a limited period. And authors would
have little inducement to prepare elaborate works for
the public, if their publication was to be at a large ex-
pense, and, as soon as they were published, there
would be an unUmited right of depredation and piracy
of their copyright. The states could not separately
make effectual provision for either of the cases ; ^ and
most of them, at the time of the adoption of the consti-
tution, had anticipated the propriety of such a grant of
power, by passing laws on the subject at the instance
of the continental congress.^
^ 1148. The power, in its terms, is confined^ to
authors and inventors ; and cannot be extended to the
introducers of any new works or inventions. This has
been thought by some persons of high distinction to be a
defect in the constitution.^ But perhaps the policy of fur-
ther extending the right is questionable; and, at all events,
the restriction has not hitherto operated as any dis-
couragement of science or the arts. It has been doubt-
ed, whether congress has authority to decide the fact,
that a person is an author or inventor in the sense of the
1 2 Kent's Comm. Lect. 36, p. 298, 299.
2 The Federalist, No. 43 ; See also 1 Tuck. Black. Comm. App. 265,
266 ; Rawle on Const, eh. 9, p. 105, 106 ; See Hamilton's Report on
Manufactures, § 8, p. 235, &c.
3 Hamilton's Rep. on Manufactures, § 8, p. 235, 236.
VOL. III. 7
50 CONSTITUTION OF THE U. STATES. [bOOK III.
constiution, so as to preclude that question from judi-
cial inquiry. But, at all events, such a construction
ought never to be put upon the terms of any general
act in favour of a particular inventor, unless it be inev-
itable.^
^ 1149. It has been suggested, that this power is not
exclusive, but concurrent with that of the states, so
always, that the acts of the latter do not contravene the
acts of congress.^ It has, therefore, been asserted, that
where congress go no farther than to secure the right to
an author or inventor, the state may regulate the use
of such right, or restrain it, so far as it may deem it inju-
rious to the public. Whether this be so or not may be
matter for grave inquiry, whenever the question shall
arise directly in judgment. At present, it seems wholly
unnecessary to discuss it theoretically. But, at any
rate, there does not seem to be the same difficulty in
affirming, that, as the power of congress extends only
to authors and inventors, a state may grant an exclusive
right to the possessor or introducer of an art or inven-
tion, who does not claim to be an inventor, but has
merely introduced it from abroad.^
^ 11 50. In the first draft of the constitution the clause
is not to be found ; but the subject was referred to a
committee, (among other propositions,) whose report
was accepted, and gave the clause in the very form, in
which it now stands in the constitution.^ A more ex-
tensive proposition, "to establish public institutions,
" rewards, and immunities for the promotion of agricul-
1 Evans v. Eatun, 3 Wheat. R. 454, 513.
2 1 Tuck. Black. Comm. Aj)p. 265, 2G6; Livingston v. Van Ingen, 9
John. R.507.
3 Livin:;ston v. Van Ingen, 9 John. R. 507 ; Sergeant on Const, ch.
28, [ch. 3').]
4 Journ. of Convention, 2^0, 327, 328, 329.
CH. XIX.] POWERS OF CONGRESS-lNVJuNTIONS. 51
ture, commerce, and manufactures " was (as lias been
before stated) made, and silently abandoned.^ Con-
gress have already, by a series of laws on this subject,
provided for the rights of authors and inventors ; and,
without question, the exercise of the power has operat-
ed as an encouragement to native genius, and to the
soUd advancement of hterature and the arts.
^ 1151. The next power of congress is, "to consti-
" tute tribunals inferiour to the Supreme Court." This
clause properly belongs to the third article of the con-
stitution ; and will come m review, when we survey the
constitution and powers of the judicial department. It
will, therefore, be, for the present, passed over.
1 Journal of Convention, 26] .
62 CONSTITUTION OF THE U. STATES. [bOOK 111.
CHAPTER XX.
POWER TO PUJVISH PIRACIES AND FELONIES.
§ 1 152. The next power of congress is. " to define
" and punish piracies and felonies committed on the
" high seas, and offences against the law of nations."
§ 1153. By the confederation the sole and exclusive
power was given to congress " of appointing courts for
the trial of piracies and felonies committed on the high
seas." ^ But there was no power expressly given to
define and punish piracies and felonies.^ Congress,
however, proceeded to pass an ordinance for the erec-
tion of a court for such trials, and prescribed the pun-
ishment of death upon conviction of the offence.^ But
they never undertook to define, what piracies or felonies
were. It was taken for granted, that these were suffi-
ciently known and understood at the common law ;
and that resort might, in all such cases, be had to that
law, as the recognised jurisprudence of the Union.^
^ 1154. If the clause of the constitution had been
confined to piracies, there would not have been any
necessity of conferring the power to define the crime.
1 Art. 9. 2 The Federalist, No. 42.
3 See Ordinance for trial of piracies and felonies, 5th April, 1781 ;
7 Journ. Cong. 76.
4 A motion was made in Congress to amend the articles of confeder-
ation, by inserting in lieu of the words, as they stand in the instrument,
the following, " declaring what acts committed on the high seas shall
be deemed piracies and felonies. It was negatived by the vote of nine
states against two. The reason, probably, was the extreme reluctance
of congress to admit any amendment after the project had been submit-
ted to the states.*
•1 S«cret Journali of Congrese, 384, June 25, 1778.
CH. XX.] POWERS OF CONGRESS -riRACY. 53
since the power to punish Avould necessarily be held lo
include the power of ascertaining and fixing the defini-
tion of the crime. Indeed, there would not seem to be
the slightest reason to define the crime at all ; for piracy
is perfectly well known and understood in the law of na-
tions, though it is often found defined in mere municipal
codes.^ By the law of nations, robbery or forcible depre-
dation upon the sea, animo furandi, is piracy. The com-
mon law, too, recognises, and punishes piracy as an of-
fence, not against its own municipal code, but as an
offence against the universal law of nations ; a pirate be-
ing deemed an enemy of the human race.^ The common
law, therefore, deems piracy to be robbery on the sea ;
that is, the same crime, which it denominates robbery,
when committed on land.^ And if congress had simply
declared, that piracy should be punished with death,
the crime would have been sufficiently defined. Con-
gress may as well define by using a term of a known
and determinate meaning, as by an express enumera-
tion of all the particulars included in that term ; for that
is certain, which, by reference, is made certain. If con-
gress should declare murder a felony, no body would
doubt, what was intended by murder. And, indeed, if
congress should proceed to declare, that homicide,
" with malice aforethought," should be deemed murder,
and a felony ; there would still be the same necessity
1 The Federalist, No. 42 ; Rawle on Const, ch. 9. p. 107 ; 2 Elliot's
Debates, 389, 390.
2 4 Black. Comm. 71 to 73.
3 Mr. East says, '• The offence of piracy, by the common law, consists
in committing those acts of robbery and depredation upon the higli seas,
which, if committed upon land, would have amounted to felony there."*
In giving this definition he has done no more than follow the language
of preceding writers on Uie common law.f
* 2 East, p. C. 796. ■ t 4 Black. Comm. 71 to 73.
54 CONSTITUTION OF THE U. STATES. [bOOK III.
of ascertaining, from the common law, what constituted
maUce aforethought. So, that there would be no end
to ditficulties or definitions ; for each successive defini-
tion might involve some terms, which would still re-
quire some new explanation. But the true intent of
the constitution in this part, was, not merely to define
piracy, as known to the law of nations, but to enumer-
ate what crimes in the national code should be deemed
piracies. And so the power has been practically ex-
pounded by congress.^
^ 1155. But the power is not merely to define and
punish piracies, but felonies, and offences against the
law of nations ; and on this account, the power to
define, as well as to punish, is pecuHarly appropriate.
It has been remarked, that felony is a term of loose sig-
nification, even in the common law ; and of various
import in the statute law of England.^ Mr. Justice
Blackstone says, that felony, in the general acceptation
of the EngUsh law, comprises every species of crime,
which occasioned at common law the forfeiture of
lands and goods. This most frequently happens in
those crimes, for which a capital punishment either is, or
was liable to be inflicted. All offences now capital by
the Enghsh law are felonies ; but there are still some
offences, not capital, which are yet felonies, (such as
suicide, petty larceny, and homicide by chance med-
ley ; ^) that is, they subject the committers of them to
some . forfeiture, either of lands or goods.^ But the
idea of capital punishment has now become so associat-
ed, in the English law, with the idea of felony, that if
an act of parliament makes a new offence felony, the
1 Unitsd States V. Smith, 5 Wheat. R. 153, 158 to 163.
2 The Federalist, No. 4^^; 2 Elliot's Deb. 389, 390.
■i Co. Litt. 391. 4 4 Black. Comm. 93 to 98.
CH. XX.] POWERS OF COIVGRESS J>I11ACY. 55
law implies, that it shall be punished with death, as well
as with forfeiture.^
§ 1156. Lord Coke has given a somewhat different
account of the meaning of felony ; for he says " ex vi
termini significat quodlibet capitale crimen felleo animo
perpetratum ;" (that is, it signifies every capital offence
committed with a felonious intent ;) " in which sense
murder is said to be done per feloniam, and is so ap-
propriated by law, as ihdit felonice cannot be expressed
by any other w^ord.^ This has been treated as a fanci-
ful derivation, and not as correct, as that of Mr. J.
Blackstone, who has follow^ed out that of Spelman.^
§ 1157. But whatever may be the true import of the
word felony at the common law% with reference to mu-
nicipal offences, in relation to offences on the high seas,
its meaning is necessarily somewhat indeterminate; since
the term is not used in the criminal jurisprudence of the
Admiralty in the technical sense of the common law.^
Lord Coke long ago stated, that apardonof felonies would
not pardon piracy, for " piracy or robbery on the high
seas was no felony, whereof the common law took any
knowledge, &c. ; but was only punishable by the civil
law, &c. ; the attainder by which law wrought no for-
feiture of lands or corruption of blood." ^ And he ad-
ded, that the statute of 28 Henry 8, ch. 15, which crea-
ted the High Commission Court for the trial of "all
treasons, felonies, robberies, murders, and confederacies,
committed in or upon the high sea, <Scc.," did not alter
1 4 Blcack. Comm. 98 ; See also 1 Hawk. P. C. ch. 37, (CiirwooJ's
Edit. ch. 7.)
2 Co. Litt. 391 ; 1 Hawk. P. C. ch. 37.
3 See 1 Curwood's Hawk. P. C. ch. 7, note p, 71.
4 United States v. Smithy 5 Wheat. R. 153, 159.
5 3 Inst. 112.
56 COXSTITUTIOX OF THE U. STATES. [bOOK III.
the offence, or make the offence felony, but left the
offence as it was before the act, viz. felony only by the
civil law.^
§ 1158. Offences against the law of nations are quite
as important, and cannot with any accuracy be said to be
completely ascertained, and defined in any public code,
recognized by the common consent of nations. In
respect, therefore, as well to felonies on the high seas,
as. to offences against the law of nations, there is a pe-
culiar fitness in giving to congress the power to define, as
well as to punish. And there is not the slightest reason
to doubt, that this consideration had very great weight
wdth the convention, in producing the phraseology of
the clause.^ On either subject it would have been in-
convenient, if not impracdcable, to have referred to the
codes of the states, as well from their imperfection, as
their different enumeration of the offences. : Certainty,
as well as uniformity, required, that the power to define
and punish should reach over the whole of these
classes of offences.^
§ 1159. What is the meaning of "high seas" within
the intent of this clause does not seem^to admit of any
serious doubt. The phrase embraces not only the
waters of the ocean, which are out of sight of land,j3ut
the waters on the sea coast below low water mark,
whether ^vithin the territorial boundaries of a foreign
nation, or of a domestic state."* Mr. Justice Blackstone
has remarked, that the main sea or high sea begins at
the low water mark. But between the high water
1 3 Inst. 112; Co. Lect. 391, a.
2 United Stales v. Smill, 5 Wheat. R. 153, 159.
3 The Federalist, No. 42 ; Sergeant on Const ch. 28, (ch. 30 ;) Rawle
on Const, ch. 9, p. 107.
4 United Slates v. Pirates, 5 Wheat. R. 184, 200, 204, 206 ; United
States V. Wiltberger, 5 Wheat. R. 76, 94.
CH. XVI.] POWERS OF CONGRESS -PIRACY. 57
mark and the low water mark, where the tide ebbs and
Hows, the common law and the admiraUy have
divisum imperiiim, an alternate jurisdiction, one upon
the water, when it is full sea ; the other upon the land,
when it is an ebb.^ He doubtless here refers to the
waters of the ocean on the sea-coast, and not in creeks
and inlets. Lord Hale says, that the sea is either that,
which lies within the body of the county or without.
That, which lies without the body of a county, is called
the main sea, or ocean.^ So far, then, as regards the
states of the Union, "high seas" may be taken to mean
that part of the ocean, which washes the sea-coast, and
is without the body of any county, according to the
common law ; and, so far as regards foreign nations, any
waters on their sea-coast, below low-water mark.^
^ 1160. Upon the propriety of granting this power
to the national government, there does not seem to
have been any controversy ; or if any, none of a serious
nature. It is obvious, that this power has an inti-
mate connexion and relation with the power to regu-
late commerce and intercourse with foreign nations,
and the rights and duties of the national government
in peace and war, arising out of the law of nations.
As the United States are responsible to foreign gov-
ernments for all violations of the law of nations, and as
the welfare of the Union is essentially connected with
the conduct of our citizens in regard to foreign nations,
congress ought to possess the power to define and
1 1 Black. Comm. 110 ; Constable's case, 5 Co. R. 106; 3 Inst. 113 ;
2 East's P. C. 802, 803.
2 Hale in Harg. Law Tracts, eh. 4, p. 10 ; 1 Hale P. C. 423, 424.
3 See Rawle on the Const, ch. 9, p. 107 ; Sergeant on the Const, ch.
28, [ch. 3;)-,] 1 Kent's Comm. Lect. 17, p. 342, &c. ; United States v.
Gnish, 5 Mason's R. 290.
VOL. III. 8
58 CONSTITUTION OF THE U. STATES. [bOOK III.
punish all such offences, which may interrupt our inter-
course and harmony with, and our duties to them.^
§ 1161. Whether this power, so far as it concerns
the law of nations, is an exclusive one, has been doubt-
ed by a learned commentator.^ As, up to the present
time, that question may be deemed for most purposes
to be a mere speculative question, it is not proposed to
discuss it, since it may be better reasoned out, when it
shall require judicial decision.
§ 1162. The clause, as it was originally reported in
the first draft of the constitution, was in substance,
though not in language, as it now stands. It was sub-
sequently amended ; and in the second draft stood in
its present terms.^ There is, however, in the Supple-
ment to the Journal, an obscure statement of a question
put, to strike out the word " punish," seeming to refer
to this clause, which was carried in the affirmative by
the vote of six states against five.^ Yet the constitu-
tion itself bears testimony, that it did not prevail.
1 See I Tucker's Black. Comm. App.268, 269 ; RaAvle on Const, eh.
9, p. 108.
8 Rawle on Const, oh. 9, p. 108.
3 Journal of Convention, 221, 257 to 259, 357.
* Journal of Convention, p. 375, 37t3.
CH. XXI.] POWERS OF CONGRESS WAR. 59
CHAPTER XXI.
THE POWER TO DECLARE WAR AND MAKE
CAPTURES.
^ 1163. The next power of congress is to "declare
*' war, grant letters of marque and reprisal, and make
*' rules concerning captures on land and water."
§ 1164. A similar exclusive power was given to
congress by the confederation.^ That such a power
ought to exist in the national government, no one will
deny, who believes, that it ought to have any powers
whatsoever, either for offence or defence, for the com-
mon good, or for the common protection. It is, there-
fore, wholly superfluous to reason out the propriety of
granting the power.^ It is self-evident, unless the na-
tional government is to be a mere mockery and
shadow. The power could not be left without ex-
treme mischief, if not absolute ruin, to the separate au-
thority of the several states ; for then it would be at
the option of any one to involve the whole in the ca-
lamities and burthens of warfare.^ In the general gov-
ernment it is safe, because there it can be declared only
by the majority of the states.
§ 1165. The only practical question upon this subject
would seem to be, to what department of the national
government it would be most wise and safe to confide
this high prerogative, emphatically called the last resort
of sovereigns, ultima ratio regum. In Great Britain
it is the exclusive prerogative of the crown ;^ and in
1 Art. 9; The Federalist, No. 41.
2 See The Federalist, No. 23, 41.
3 1 Tucker's Black. Comm. App. 271.
4 1 Black. Comm. 257, 2.58.
60 CONSTITUTION OF THE U. STATES. [bOOK III.
Other countries, it is iisiiallv, if not universally, confided
to the executive department. It might by the consti-
tution have been confided to the executive, or to the
senate, or to both conjointly.
§ 1166. In the plan offered by an eminent states-
man in the convention, it was proposed, that the senate
should have the sole power of declaring war.^ The
reasons, which may be urged in favour of such an
arrangement, are, that the senate would be composed
of representatives of the states, of great weight, saga-
city, and experience, and that being a small and select
body, promptitude of action, as well as wisdom, and
firmness, would, as they ought, accompany the pos-
session of the power. Large bodies necessarily move
slowly ; and where the co-operation of different bodies
is required, the retardation of any measure must be
proportionally increased. In the ordinary course of
legislation this may be no inconvenience. But in the
exercise of such a prerogative, as declaring war, des-
patch, secresy, and vigour are often indispensable, and
always useful towards success. On the other hand it
may be urged in reply, that the power of declaring
war is not only the highest sovereign prerogative ; but
that it is in its own nature and effects so critical and ca-
lamitous, that it requires the utmost deliberation, and
the successive review of all the councils of the nation.
War, in its best estate, never fails to impose upon the
people the most burthensome taxes, and personal suf-
ferings. It is always injurious, and sometimes sub-
versive of the great commercial, manufacturing, and
agricultural interests. Nay, it always involves the
prosperity, and not unfrequently the existence, of a
1 Mr. Ilnmilton's Pin n, Journal of Convention, p. I'^l
CH. XXI.] POWERS OF CONGRESS WAR. 61
nation. It is sometimes fatal to public liberty itself, by
introducing a spirit of military glory, which is ready
to follow, wherever a successful commander will
lead ; and in a republic, whose institutions are essen-
tially founded on the basis of peace, there is infmite
danger, that war will find it both imbecile in defence,
and eager for contest. Indeed, the history of republics
has but too fatally proved, that they are too ambitious
of military fame and conquest, and too easily devoted
to the views of demagogues, who flatter their pride,
and betray their interests. It should therefore be
difficult in a republic to declare war ; but not to make
peace. The representatives of the people are to lay
the taxes to support a war, and therefore have a right to
be consulted, as to its propriety and necessity. The
executive is to carry it on, and therefore should be
consulted, as to its time, and the ways and means of
making it eff*ective. The co-operation of all the branches
of the legislative power ought, upon principle, to be re-
quired in this the highest act of legislation, as it is in all
others. Indeed, there might be a propriety even in
enforcing still greater restrictions, as by requiring a con-
currence of two thirds of both houses.^
^ 1167. This reasoning appears to have had great
weight with the convention, and to have decided its
choice. Its judgment has hitherto obtained the unqual-
ified approbation of the country.^
1 Several of the states proposed an amendment to the constitution to
this effect. But it was never adopted by a majority.* Under the con-
federation, the assent of nine states was necessary to a declaration of
war, (Art. 9.)
2 1 Tucker's Black. Comm. App. 2G9 to 272 ; Rawle on the Const,
ch. 9, p. 109.
* 1 Tucker's Black. Comm. App. 271, 272, 374.
62 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1168. In the convention, in the first draft of the
constitution, the power was given merely "to make war."
It was subsequently, and not without some struggle,
altered to its present form.^ It w^as proposed to add
the power " to make peace ;" but this was unanimously
rejected;^ upon the plain ground, that it more properly
belonged to the treaty-making power. The experience
of congress, under the confederation, of the difficulties,
attendant upon vesting the treaty-making power in a
large legislative body, was too deeply felt to justify the
hazard of another experiment.^
§ 1169. The power to declare war maybe exer-
cised by congress, not only by authorizing general
hostilities, in which case the general law^s of war apply
to our situation ; or by partial hostilities, in which case
the laws of war, so far as they actually apply to our situa-
tion, are to be observed.^ The former course was resort-
ed to in our war with Great Britain in 1812, in which
congress enacted, " that w^ar be, and hereby is declared
to exist, between the United Kingdom of Great Britain
and Ireland and the dependencies thereof, and the
United States of America and their territories." ^ The
latter course was pui»sued in the qualified war of 1 798
with France, which was regulated by divers acts of
congress, and of course was confined to the limits pre-
scribed by those acts.^
^ 1170. The power to declare war would of itself
carry the incidental power to grant letters of marque
1 Journal of Convention, 221, 258, 259, 327, 328.
2 Ibid, 259.
3 The Federalist, No. 04. See also Rawle on the Const, oh. 9, p. 1 10 ;
North Amcr. Rev. Oct. 1827, p. 203.
" Talbot V. Seemnn, 1 Cranch's R. 1, 28 ; Bns v. Tingey, 4 Dall. 37.
5 Actof 1812, ch. 102.
6 Rawle on the Const, ch. 9, p- 109 ; Sergeant on Const, cli. 28, [ch.
30;] Bus V. Tingey, 4 Dall. R. 37.
CH. XXI.] POWERS OF CONGRESS WAIl. G3
and reprisal, and make rules concerning captures. It is
most probable, that an extreme solicitude to Ibllovv out
the powers enumerated in the confederadon occasioned
the introduction of these clauses into the consUtution. In
the former instrument, where all powers, not expressly
delegated, were prohibited, this enumeration was pecu-
liarly appropriate. But in the latter, where incidental
powers were expressly contemplated, and provided for,
the same necessity did not exist. As has been already
remarked in another place, and will abundantly appear
from the remaining auxiliary clauses to the power to
declare war, the constitution abounds with pleonasms
and repetitions, sometimes introduced from caution,
sometimes from inattention, and sometimes from the
imperfecdons of language.^
§ 1171. But the express power "to grant letters of
marque and reprisal " may not have been thought wholly
unnecessary, because it is often a measure of peace, to
prevent the necessit}' of a resort to war. Thus, indi-
viduals of a nation sometimes suffer from the depreda-
tions of foreign potentates ; and yet it may not be
deemed either expedient or necessary to redress such
grievances by a general declaration of war. Under
such circumstances the law of nations authorizes the
sovereign of the injured individual to grant him this
mode of redress, whenever justice is denied to him by
the state, to which the party, who has done the injury,
belongs. In this case the letters of marque and reprisal
(words used as synonymous, the latter (reprisal) signi-
fying, a taking in return, the former (letters of marque)
the passing the frontiers in order to such taking,)
contain an authority to seize the bodies or goods of
the subjects of the offending state, wherever they may
1 See Mr. Madison's Letter to Mr. Cabell., 18th Sept. 1828.
64 COXSTITTJTION OF THE U. STATES. [bOOK III.
be found, until satisfaction is made for the injury.^
This power of reprisal seems indeed to be a dictate
almost of nature itself, and is nearly related to, and
plainly derived from that of making war. It is only an
incomplete state of hostilities, and often ultimately leads
to a formal denunciation of war, if the injury is unre-
dressed, or extensive in its operations.^
§ 1172. The power to declare war is exclusive in
congress ; and (as will be hereafter seen,) the states
are prohibited from engaging in it, unless in cases of
actual invasion or imminent danger thereof. It includes
the exercise of all the ordinary rights of belligerents;
and congress may therefore pass suitable laws to
enforce them. They may authorize the seizure and
condemnation of the property of the enemy within, or
without the territory of the United States ; and the con-
fiscation of debts due to the enemy. But, until laws
have been passed upon these subjects, no private citi-
zens can enforce any such rights ; and the judiciary is
incapable of giving them any legitimate operation.^
§ 11 73. The next power of congress is " to raise and
" support armies ; but no appropriation of money to that
" use shall be for a longer term than two years."
§ 1174. The pow^er to raise armies is an indis-
pensable incident to the pow er to declare war ; and
the latter — would be literally brutum fidmen without
the former, a means of mischief without a power of
defence.^ Under the confederation congress possessed
no power whatsoever to raise armies ; but only " to
' 1 Black. Comm. 258, 259.
2 1 Black. Comm. 258, 259; Bynkershoek on War, ch. 24, p. 1^^2, by
Duponceau ;Valin Traite des Prises, p. 223, 321 ; 1 Tuck. Black. Comm.
App. 271 ; 4 Elliot's Deb. 251.
3 Brown v. United Slates, 8 Crancli's R. 1.
4 4 Elliot's Deb. 220, 221.
CH. XXI.] POWERS or CONGRESS WAR. 65
agree upon the number of land forces, and to make
requisitions from each state for its quota, in proportion
to the number of white inhabitants in such state ;" which
requisitions were to be binding ; and thereupon the legis-
lature of each state were to appoint the regimental offi-
cers, raise the men, and clothe, arm, and equip them in a
soldier-like manner, at the expense of the United
States.^ The experience of the whole country, dur-
ing the revolutionary war, established, to the satisfaction
of every statesman, the utter inadequacy and impropriety
of this system of requisidon. It was equally at war
with economy, efficiency, and safety.^ It gave birth to
a competition between the states, which created a kind
of auction of men. In order to furnish the quotas
required of them, they outbid each other, till bounties
grew to an enormous and insupportable size. On this
account many persons procrasdnated their enlistment, or
enlisted only for short periods. Hence, there were but
slow and scanty levies of men in the most critical emer-
gencies of our affairs ; short enlistments at an unparallel-
ed expense; and continual fluctuations in the troops, ru-
inous to their disciphne, and subjecting the public safety
frequently to the perilous crisis of a disbanded army.
Hence also arose those oppressive expedients for rais-
ing men, which were occasionally pracdsed, and which
nothing, but the enthusiasm of liberty, could have induc-
ed the people to endure.^ The burthen was also very
1 Art. 9 ; Art. 7.
2 1 American Museum, 270, 273,283 ; 5 Marshall's Life of Washing-
ton, A pp. note 1.
3 The Federalist, No. 22, 23. — The difficulties connected with this
subject will appear still more striking in a practical view from the let-
ters of General Washinrrton, and other public documents at the period.
See 5 Marshall's Life of Washington, ch. 3, p. 125, 12(); ch.5, p. 212 to
220; ch. (3, p. 238 to 248. See 6 Journals of Congress in 1780 passim.
Circular Letter of Congress, in May, 1779 ; 5 Jour, of Cong. 224 to 231.
VOL. HI. 9 ^
66 CONSTITUTION OF THE tJ. STATES. [bOOK III.
unequally distributed. The states near the seat of war,
iniluenced by motives of self-preservation, made efforts
to furnish their quotas, which even exceeded their abil-
ities ; while those at a distance were exceedingly remiss
in their exertions. In short, the army was Irequently
composed of three bodies of men ; first, raw recruits ;
secondly, persons, w ho w ere just about completing their
term of service ; and thirdly, of persons, w ho had served
out half their term, and were quietly waiting for its
determination. Under such circumstances, the wonder
is not, that its military operations were tardy, irregular,
and often unsuccessful ; but, that it was ever able to
make head-w^ay at all against an enemy, possessing a
fine establishment, well appointed, well armed, well
clothed, and well paid.^ 'J'he appointment, too, by the
states, of all regimental officers, had a tendency to de-
stroy all harmony and subordination, so necessary to the
success of military life.
§ 1 1 75. There is great wisdom and propriety in reliev-
ing the government from the ponderous and unwieldy
machinery of the requisitions and appointments under
the confederation. The present system of the Union is
general and direct, and capable of a uniform organiza-
tion and action. It is essential to the common de-
fence, that the national government should possess the
power to raise armies ; build and equip fieets ; pre-
scribe rules for the government of both ; direct their
operations ; and provide for their support.^
^ 1176. The clause, as originally reported, was "to
raise armies ; " and subsequently it was, upon the report
of a committee, amended, so as to stand in its present
1 The Federalist, No. 22, 2.?.
2 The Federalist, No. 23; 2 Elliot's Debates, 92, 93-
CH. XXI.] POWKRS OF CONGRESS WAR. 67
form; and as amended it seems to have encountered no
opposition in the convention.^ It was, however, after-
wards assailed in the state conventions, and before the
people, with incredible zeal and pertinacity, as danger-
ous to liberty, and subversive of the state governments.
Objections were made against the general and indefinite
power to raise armies, not limiting the number of troops;
and to the maintenance of them in peace, as well as in
war.
^ 1177. It was said, that congress, having an unlim-
ited power to raise and support armies, might, if in their
opinion the general welfare required it, keep large
armies constantly on foot, and thus exhaust the resour-
ces of the United States. There is no control on con-
gress, as to numbers, stations, or government of them.
They may billet them on the people at pleasure.
Such an unlimited authority is most dangerous, and in
its principles despotic ; for being unbounded, it must
lead to despotism. We shall, therefore, hve under a
government of military force.^ In respect to times of
peace, it was suggested, that there is no necessity
for having a standing army, which had always been held,
under such circumstances, to be fatal to the public rights
and polidcal freedom.^
^ 1178. To these suggestions it was replied with
equal force and truth, that to be of any value, the power
must be unhmited. It is impossible to foresee, or
define the extent and variety of national exigencies,
and the correspondent extent and variety of the national
means necessary to satisfy them. The power must be
co-extensive with all possible combinations of circum-
1 Journal of Convention, 2-21, 327, 328,
2 2 Elliot's Debutes, 2r5, 286, n07, 308, 430.
3 2 Elliot's Debates, 307, 308, 430.
68 COXSTITUTIOX OF THE U. STATES. [bOOK III.
Stances, and under the direction of the councils entrust-
ed with the common defence. To deny this would be
to deny the means, and yet require the end. These
must, therefore, be unlimited in every matter essential
to its efRcacy, that is, in the formation, direction, and
support of the national forces.^ This was not doubted
under the confederation ; though the mode adopted to
carry it into effect was utterly inadequate and illusory.^
There could be no real danger from the exercise of the
power, it was not here, as in England, where the ex-
ecutive possessed the power to raise armies at plea-
sure ; w^hich power, so far as respected standing armies
in time of peace, it became necessary to provide by the
bill of rights, in 1688, should not be exercised without
the consent of parliament.^ Here the power is ex-
clusively confined to the legislative body, to the repre-
sentatives of the states, and of the people of the states.
And to suppose it will not be safe in their hands,
is to suppose, that no powers of government, adapted
to national exigencies, can ever be safe in any pohti-
ca! body.^ Besides, the power is limited by the
necessity (as will be seen) of biennial appropriations.^
The objection, too, is the more strange, because there
^re but two constitutions of the thirteen states, which
attempt in any manner to limit the power ; and these
are rather cautions for times of peace, than prohibitions.*^
The confederation itself contains no prohibition or
limitation of the power."^ Indeed, in regard to times of
war, it seems utterly preposterous to impose any limit-
1 The P\-(lcralist, No. 23; 2 Elliot's Debates, 92, 93, 438.
2 2 Elliot's Debates, 438. 3 i Black. Comm. 262, 413.
4 The Federalist, No. 23, 26. 5 The Federalist, No. 24, 25.
c< The Federalist, No. 24, and note ; Id. No. 26.
7 The Fodorolist, No. 24 ; 2 Elliot's Debates, 43S.
CH. XXI.] POWERS OF CONGRESS WAR. 6{)
ations upon the power ; since it is obvious, tliat emer-
gencies may arise, which would require the most vari-
ous, and independent exercises of it. The country
would otherwise be in danger of losing both its liberty
and its sovereignty, from its dread of investing the
public councils with the power of defending it. It
would be more willing to submit to foreign conquest,
than to domestic rule.
§ 1179. But in times of peace the power may be at
least equally important, though not so often required to
be put in full exercise. The United States are sur-
rounded by the colonies and dependencies of potent
foreign governments, whose maritime power may fur-
nish them with the means of annoyance, and mischief,
and invasion. To guard ourselves against evils of this
sort, it is indispensable for us to have proper forts and
garrisons, stationed at the weak points, to overawe or
check incursions. Besides ; it will be equally impor-
tant to protect our frontiers against the Indians, and
keep them in a state of due submission and control.^
The garrisons can be furnished only by occasional de-
tachments of miUtia, or by regular troops in the pay of
the government. The first would be impracticable, or
extremely inconvenient, if not posidvely pernicious.
The militia would not, in times of profound peace, sub-
mit to be dragged from their occupations and families
to perform such a disagreeable duty. And if they
would, the increased expenses of a frequent rotation in
the service ; the loss of time and labour ; and the
breaking up of the ordinary employments of life ; would
make it an extremely ineligible scheme of military
power. The true and proper recourse should, there-
1 The Federalist, No. 24, 25; 2 Elliot's Debates, 292, 293.
70 CONSTITUTION OF THE U. STATES. [bOOK III.
fore, be to a permanent, but small standing army for
such purposes.^ And it would only be, when our neigh-
bours should greatly increase their military force, that
prudence and a due regard to our own safety would
require any augmentation of our own.^ It would be
w^holly unjustifiable to throw upon the states the de-
fence of their own frontiers, either against the Indians,
or against foreign foes. The burthen would often be
disproportionate to their means, and the benefit would
often be largely shared by the neighbouring states.
The common defence should be provided for out of the
common treasury. The existence of a federal govern-
ment, and at the same time of military establishments
under state authority, are not less at variance wdth each
other, than a due supply of the federal treasury, and
the system of quotas and requisitions.^
§ 11 80. It is important also to consider, that the surest
means of avoiding war is to be prepared for it in peace.
If a prohibition should be imposed upon the United
States against raising armies in time of peace, it would
present the extraordinary spectacle to the world of a
nation incapacitated by a constitution of its own choice
from preparing for defence before an actual invasion.
As formal denunciations of war are in modern times often
neglected, and are never necessary, the presence of an
enemy within our territories would be required, before
the government would be warranted to begin levies of
men for the protection of the state. The blow must
be received, before any attempts could be made to
ward it off, or to return it. Such a course of conduct
would at all times invite aggression and insult ; and
enable a formidable rival or secret enemy to seize upon
1 The Federalist, No. 24 ; 2 Elliot's Debates, 292, 293.
2 The Federalist, No. 24, 41. 3 Id. No. 25.
CH. XXI.] POWERS OF C0NC;RESS — WAI{. 71
the country, as a defenceless prey; or to di-aiii its re-
sources by a levy of contributions, at once irresistible
and ruinous.^ It would be in vain to look to the militia
for an adequate defence under such circumstances.
This reliance came very near losing us our indepen-
dence, and was the occasion of the useless expendi-
ture of many millions. The history of other countries,
and our past experience, admonish us, that a regular
force, well disciphned and well supphed, is the cheapest,
and the only eflectual means of resisting the inroads of
a well disciplined foreign army.^ In short, under such
circumstances the constitution must be either violated,
(as it in fact was by the states under the confederation,^)
or our hberties must be placed in extreme jeopardy.
Too much precaution often leads to as many difficulties,
as too much confidence. How could a readiness for
war in time of peace be safely prohibited, unless we
could in like manner prohibit the preparations and
estabfishments of every hostile nation ? The means of
security can be only regulated by the means and the
danger of attack. They will, in fact, ever be deter-
mined by these rules, and no other. It ^^ill be in vain
to oppose constitutional barriers to the impulse of self-
preservation."*
§ 1181. But the dangers from abroad are not alone
those, which are to be guarded against in the structure of
the national government. Cases may occur, and indeed
are contemplated by the consUtution itself to occur, in
which mihtary force may be indispensable to enforce
the laws, or to suppress domestic insurrections. Where
the resistance is confined to a few insurgents, the sup-
1 The Federalist, No. 25 ; 2 Elliot's Debates, 92, 93.
2 The Federalist, No. 25, 41. 3 id. 25.
4 The Federalist, No. 4J ; 3 Elliot's Debates, 305.
72 CONSTITUTION OF THE U. STATES. [bOOK III.
pression may be ordinarily, and safely confided to the
militia. But where it is extensive, and especially if it
should pervade one, or more states, it may become im-
portant and even necessary to employ regular troops,
as at once the most effective, and the most economical
force.^ Without the power to employ such a force in
time of peace for domestic purposes, it is plain, that the
government might be in danger of being overthrown
by the combinations of a single faction.^
^ 1182. The danger of an undue exercise of the
power is purely imaginary. It can never be exerted,
but by the representatives of the people of the states ;
and it must be safe there, or there can be no safety at
all in any republican form of government.^ Our notions,
indeed, of the dangers of standing armies in time of
peace, are derived in a great measure from the princi-
ples and examples of our EngUsh ancestors. In Eng-
land, the king possessed the- power of raising armies
in the time of peace according to his own good plea-
sure. And this prerogative was justly esteemed dan-
gerous to the public liberties. Upon the revolution of
1688, parliament wisely insisted upon a bill of rights,
which should furnish an adequate security for the future.
But how was this done? Not by prohibiting standing
armies altogether in time of peace ; but (as has been
already seen) by prohibiting them without the consent of
parliament,'^ This is the very proposition contained in
the constitution; for congress can alone raise armies;
and may put them down, whenever they choose.
1 The Federalist, No. 28, 26.
2 2 Elliot's Debates, 92, 93.
3 The Federalist, No. 23, 26, 28.
4 The Federalist, No. 20; 1 Black. Comm.4l3.
CH. XXI.] POWERS OF CONGRESS ARMY. 73
^ 1183. It may be admitted, that standing armies
may prove dangerous to the state. But it is equally
true, that the want of them may also prove dangerous
to the state. What then is to be done? The true
course is to check the undue exercise of the power,
not to Avithhold it.^ This the constitution has attempt-
ed to do by providing, that " no appropriation of money
" to that use shall be for a longer term than two years."
Thus, unless the necessary supplies are voted by the
representatives of the people every two years, the
whole establishment must fall. Congress may indeed,
by an act for this purpose, disband a standing army at
any time ; or vote the supplies only for one year, or for
a shorter period. But the constitution is imperative,
that no appropriation shall prospectively reach beyond
the biennial period. So that there would seem to be
every human security against the possible abuse of the
power.^
§ 1184. But, here again it was objected, that the
executive might keep up a standing army in time of
peace, notwithstanding no supplies should be voted.
But how can this possibly be done ? The army cannot
go without supplies ; it may be disbanded at the plea-
sure of the legislature ; and it would be absolutely im-
possible for any president, against the will of the na-
tion, to keep up a standing army in terrorem populL^
^ 1185. It was also asked, why an appropriation
should not be annually made, instead of biennially, as is
the case in the British parliament.^ The answer is, that
congress may in their pleasure limit the appropriation
1 The Federalist, No. 41 ; 2 Elliot's Debates, 93, 308, 309.
2 The Federalist, No. 26, 41.
3 The Federalist, No. 26.
•1 1 Tucker's Black. Comm. App. 272; 1 Black. Comm. 414, 415.
VOL. III. 10
74 CONSTITUTION OF THE U. STATES. [bOOK III.
to a single year ; but exigencies may arise, in which,
with a view to the advantages of the public service and
the pressure of war, a biennial appropriation might
be far more expedient, if not absolutely indispensable.
Cases may be supposed, in which it might be imprac-
ticable for congress, in consequence of public calamides,
to meet annually for the despatch of business. But
the supposed example of the British parhament proves
nothing. That body is not restrained by any constitu-
tional provision from voting supplies for a standing
army for an unlimited period. It is the mere practice
of parliament, in the exercise of its own discretion, to
make an annual vote of supplies. Surely, if there is
no danger in confiding an unlimited power of this na-
ture to a body chosen for seven years, there can be
none in confiding a limited power to an American con-
gress, chosen for two years.^
^ 1186. In some of the state conventions an amend-
ment was proposed, requiring, that no standing army, or
regular forces be kept up in time of peace, except for
the necessary protection and defence of forts, arsenals,
and dockyards, without the consent of two thirds of
both houses of congress.^ But it was silently suf-
fered to die away with the jealousies of the day. The
practical course of the government on this head has
allayed all fears of the people, and fully justified the
opinions of the friends of the constitution. It is re-
markable, that scarcely any power of the national gov-
ernment was at the time more strongly assailed by
1 The Federalist, No. 41.
2 1 Tucker's Black. Comm. App. 271,272, 379. — An attempt was
also made in the convention, to insert a clause, limiting the number of
the army in time of peace to a number ; but it was negatived.
Journal of Convention, p. 2G2
CH. XXI. J POWERS OF CONGRESS ARMY. 75
appeals to popular prejudices, or vindicated with more
lull and masculine discussion. The Federalist gave it
a most elaborate discussion, as one of the critical points
of the constitution.^ In the present times the su1)ject
attracts no notice, and would scarcely furnish a topic,
even for popular declamation. Ever since the consti-
tution was put into operation, congress have restrained
their appropriations to the current year ; and thus prac-
tically shown the visionary nature of these objections.
§ 1 187. Congress in 1798, in expectation of a war with
France, authorized the president to accept the services
of any companies of volunteers, who should associate
themselves for the service, and should be armed, clothed,
and equipped at their own expense, and to commission
their officers.^ This exercise of power was complain-
ed of at the time, as a virtual infringement of the con-
stitutional authority of the states in regard to the militia;
and, as such, it met with the disapprobation of a learned
commentator.^ His opinion does not, however, seem
since to have received the deliberate assent of the na-
tion. During the late war with Great Britain, laws
were repeatedly passed, authorizing the acceptance of
volunteer corps of the militia under their own officers ;
and eventually, the president was authorized, with the
consent of the senate, to commission officers for such
volunteer corps. These laws exhibit the decided
change of the public opinion on this subject ; and they
deserve more attention, since the measures were pro-
moted and approved under the auspices of the very
J The Federalist, No. 24 to 29.
2 Act of 28th of May, 179S, ch. 64 ; Act of 22d of June, 1798, ch. 74 ;
Act of 2d of March, 1799, ch. 187.
3 1 Tucker's Black. Comm. App. 273, 274, 329, 330. See also Vir-
ginia Report and Resolutions, 9th of January, 1800, p. 53 to 56.
76' COJ^STITUTION OF THE U. STATES. [bOOK III.
party, which had inculcated an opposite opinion.^ It is
proper to remark, that the Federahst maintained, that
the disciphning and effective organization of the whole
miUtia would be impracticable ; that the attention of the
government ought particularly to be directed to the
formation of a select corps of moderate size, upon such
principles, as would really fit them for service in case of
need ; and that such select corps would constitute the
best substitute for a large standing army, and the most
formidable check upon any undue military powers; since
it wuuld be composed of citizens well disciplined, and
well instructed in their rights and duties.^
^ 1 188. The next power of congress is " to provide
and maintain a navy."
^ 1189. Under the confederation congress possessed
the power "to build and equip a navy."^ The same
language w^as adopted in the original draft of the con-
stitution ; and it was amended by substituting the pre-
sent words, apparently without objection, as more broad
and appropriate."* In the convention, the propriety of
granting the power seems not to have been questioned.
Butitnwas assailed in the state conventions as dangerous.
It was said, that commerce and navigation are the prin-
cipal sources of the wealth of the maritime powers of
Europe ; and if we engaged in commerce, we should
soon become their rivals. A navy would soon be
1 See Act of 8th of Feb. 1812, ch. 22 ; Act of 6th of July, 1812, ch.
138; Act of 2nh of Feb. 1814, ch. 75; Act of 30th of March, 1814, ch.
90; Act of 27th of Jan. 1815, ch. 178. See also Act of 24th of Feb
1807, ch. 70.
2 The Federalist, No. 29.
3 Art. 9.
4 Journ. of Convention, 221, 262.
CH. XXI.] POWERS OF CONGRESS NAVY. . 77
thought indispensable to protect it. But the attempt
on our part to provide a navy would provoke these
powers, who would not suffer us to become a naval
power. Thus, we should be immediately involved in
wars with them. The expenses, too, of maintaining a
suitable navy would be enormous ; and wholly dispro-
portionate to our resources. If a navy should be pro-
vided at all, it ought to be limited to the mere protec-
tion of our trade.^ It was further urged, that the
Southern states would share a large portion of the bur-
thens of maintaining a navy, without any corresponding
advantages.^
^1190. With the nation at large these objections
were not deemed of any validity. The necessity of a
navy for the protection of commerce and navigation
was not only admitted, but made a strong ground for
the grant of the power. One of the great objects of
the constitution was the encouragement and protec-
tion of navigation and trade. Without a navy, it
would, be utterly impossible to maintain our right to the
fisheries, and our trade and navigation on the lakes, and
the Mississippi, as well as our foreign commerce. It
was one of the blessings of the Union, that it would be
able to provide an adequate support and protection for
all these important objects. Besides ; a navy would be
absolutely indispensable to protect our whole Atlantic
frontier, in case of a war with a foreign maritime power.
We should otherwise be liable, not only to the invasion
of strong regular forces of the enemy ; but to the at-
tacks and incursions of every predatory adventurer.
Our maritime towns might all be put under contribu-
tion ; and even the entrance and departure from our
1 2 Elliot's Deb. 224, 319, 320.
'^ 2 Elliot's Deb. 310, 320.
78 COTv^STITUTION OF THE U. STATES. [bOOK III.
own ports be interdicted at the caprice, or the hostility
of a foreign power. It would also be our cheapest, as
well as our best defence ; as it would save us the ex-
pense of numerous forts and garrisons upon the sea-
coast, which, though not effectual for all, would still be
required for some purposes. In short, in a maritime
warfare without this means of defence, our commerce
would be driven from the ocean, our ports would be
blockaded, our sea-coast infested with plunderers, and
our vital interests put at hazard.^
§ 1191. Although these considerations were decisive
^yith the people at large in favour of the power, from
its palpable necessity and importance to all the great
interests of the country, it is within the memory of all
of us, that the same objections for a long time prevailed
with a leading party in the country,^, and nurtured a
policy, which w^as utterly at variance with our duties, as
well as our honour. It was not until during the late war
with Great Britain, when our litde navy, by a gallantry
and brilliancy of achievement almost without parallel,
had literally fought itself into favour, that the nation at
large began to awake from its lethargy on this subject,
and to insist upon a policy, which should at once make
us respected and formidable abroad, and secure protec-
tion and honour at home.^ It has been proudly said
1 The Federalist, No. 11, 24, 41. See also 1 Tucker's Black. Comm.
App. 272.
2 Sec 5 Marshall's Life of Washington, ch. 7, p. 523 to 531.
3 Lest it should be supposed, that these remarks are not well founded,
the following passage is extracted from the celebrated Report and Re-
solutions of the Virginia legislature, of 7th and 11th Jan. 1800, which
formed the text-book of many political opinions for a long period.
" With respect to the navy, it may be proper to remind you, that what-
ever may be tlic proposed object of its establishment, or whatever the
prospectof temporary advantages resulting therefrom, it is demonstrated
by the experience of all nations, who have adventured far into naval
CH. XXI.] POWERS OF CONGRESS NAVY. 79
by a learned commentator on the laws of England, that
the royal navy of England hath ever been its greatest
defence and ornament. It is its ancient and natural
strength ; the floating bulwark of the island ; an army,
from which, however strong and powerful, no danger
can be apprehended to liberty.^ Every American citi-
zen ought to cherish the same sentiment, as applicable
to the navy of his own country.
^ 1192. The next power of congress is " to make
" rules for the government and regulation of the land and
" naval forces." This is a natural incident to the preced-
ing powers to make war, to raise armies, and to provide
and maintain a navy. Its propriety, therefore, scarcely
could be, and never has been denied, and need not now
be insisted on. The clause was not in the original
draft of the constitution ; but was added without objec-
tion by way of amendment.^ It was without question
borrowed from a corresponding clause in the articles of
confederation,^ where it was with more propriety given,
because there was a prohibition of all implied powers.
In Great Britain, the king, in his capacity of generahssimo
of the whole kingdom, has the sole power of reguladng
policy, that such prospect is ultimately delusive ; and that a navy has
ever in practice been known more as an instrument of power, a source
of expense, and an occasion of collisions and wars with other nations,
than as an instrument of defence, of economy, or of protection to
commerce. Nijr is there any nation, in the judgment of the g^eneral
assembly, to whose circumstances this remark is more applicable, than
to the United States." p. 57, 58. And the senators and representa-
tives were instructed and requested by one of the resolutions "to
prevent any augmentation of the navy, and to promote any proposi-
tion for reducing it, as circumstances will permit, within tlie narrowest
limits compatible with the protection of the sea-coasts, ports, and
harbours of the United States." p. 59.
1 1 Black. Comm. 418.
2 Journal of Convention, p. 221, 262.
3 Art. 9.
80 CONSTITUTION OF THE U. STATES. [bOOK III.
fleets and armies.^ But parliament has repeatedly in-
terposed ; and the regulation of both is now in a consid-
erable measure provided for by acts of parliament.^
The whole power is far more safe in the hands of con-
gress, than of the executive ; since otherwise the most
summary and severe punishments might be inflicted at
the mere will of the execudve.
§ 1193. It is a natural result of the sovereignty over
the navy of the United States, that it should be ex-
clusive. Whatever crimes, therefore, are committed
on board of public ships of war of the United States,
whether they are in port or at sea, they are exclusively
cognizable and punishable by the government of the
United States. The public ships of sovereigns, wher-
ever they may be, are deemed to be extraterritorial,
and enjoy the immunides from the local jurisdiction
belonging to their sovereign.^
1 1 Black. Coram. 262, 421.
2 1 Black. Coram. 413, 414, 415, 420, 421.
3 See United States v. Bevans, 3 Wheaton's R. 336, 390. The Schr.
Exchange, 7 Cranch's R. 116.
CH. XXII.] POWERS OF CONGRESS MILITIA. 81
CHAPTER XXII.
POWER OVER THE MILITIA.
§ 1 194. The next power of congress is " to provide
" for calling forth the militia to execute the laws of the
" Union, suppress insurrections, and repel invasions."
§ 1 195. This clause seems, after a slight amendment,
to have passed the convention without opposition.^ It
cured a defect severely felt under the confederation,
which contained no provision on the subject.
^ 1196. The power of regulating the militia, and of
commanding its services to enforce the laws, and to
suppress insurrections, and repel invasions, is a natural
incident to the duty of superintending the common
defence, and preserving the internal peace of the nation.
In short, every argument, which is urged, or can be
urged against standing armies in time of peace, applies
forcibly to the propriety of vesting this power in the
national government. There is but one of two alterna-
tives, which can be resorted to in cases of insurrection,
invasion, or violent opposition to the laws ; eicher to
employ regular troops, or to employ the militia to sup-
press them. In ordinary cases, indeed, the resistance
to the laws may be put down by the posse comitatus,
or the assistance of the common magistracy. But cases
may occur, in which such a resort would be utterly
vain, and even mischievous ; since it might encourage
the factious to more rash measures, and prevent the
application of a force, which would at once destroy the
hopes, and crush the efforts of the disaflfected. The
1 Journal of Convention, 221, 283.
VOL. III. 11
82 CONSTITUTION OF THE U. STATES. [bOOK III.
general power of the government to pass all laws
necessary and proper to execute its declared powers,
would doubdess authorize laws to call forth the posse
comitatus, and employ the common magistracy, in cases,
where such measures would suit die emergency.^ But
if the militia could not be called in aid, it would be abso-
lutely indispensable to the common safety to keep up a
strong regular force in time of peace.^ The latter would
certainly not be desirable, or economical ; and therefore
this power over the miUtia is highly salutary to the pub-
he repose, and at the same time an additional security
to the public liberty. In times of insurrection or in-
vasion, it would be natural and proper, that the militia
of a neighbouring state should be marched into another
to resist a common enemy, or guard the republic against
the violences of a domestic faction or sedition. But it
is scarcely possible, that in the exercise of the power
the militia should ever be called to march great distan-
ces, since it would be at once the most expensive and
the most inconvenient force, which the government
could employ for distant expeditions.^ The regulation
of the whole subject is always to be in the power of
congress ; and it may from time to time be moulded so,
as to escape from all dangerous abuses.
§ 1197. Notwithstanding the reasonableness of
these suggestions, the power w^as made the subject of
the most warm appeals to the people, to alarm their fears,
and surprise their judgment.^ At one time it was said,
1 2 Elliot's Debates, 300, 304, 305, 308, 309.
2 The Federalist, No. 29 ; 2 Elliot's Debates, 292, 293, 294,308, 309.
3 The Federalist, No. 29 ; 2 Elliot's Deb. 92, 107, 108, 292, 293, 294,
308, 309 ; 3 Elliot's Deb. 305, 30(i.
4 2 Elliot's Deb. 06, 67, 307, 310, 314, 315 ; The Federalist, No. 29 ;
Luther Martin's Address, Yates's Minutes ; 4 Elliot's Deb. 33, 34,
CH. XXII.] POWERS OF CONGRESS MILITIA.
83
that the militia under the command of the national gov-
ernment might be dangerous to the public liberty ; at
another, that they might be ordered to the most distant
places, and burthened with the most oppressive servi-
ces ; and at another, that the states might thus be
robbed of their immediate means of defence.^ How
these things could be accomplished with the consent of
both houses of congress, in which the states and the
people of the states are represented, it is difficult to
conceive. But the highly coloured and impassioned
addresses, used on this occasion, produced some pro-
positions of amendment in the state conventions,^ which,
however, were never duly ratified, and have long since
ceased to be felt, as matters of general concern.
^ 1 198. The next power of congress is, " to provide
"for organizing, arming, and disciplining the milida, and
" for governing such part of them, as may be employed
" in the service of the United States ; reserving to the
" states respectively the appointment of the officers,
" and the authority of training the milida according to
" the discipline prescribed by congress."
§ 1199. This power has a natural connexion with
the preceding, and, if not indispensable to its exercise,
furnishes the only adequate means of giving it prompti-
tude and efficiency in its operations. It requires no
skill in the science of war to discern, that uniformity in
the organization and discipline of the militia will be
attended with the most beneficial effects, whenever
they are called into acdve service. It will enable them
to discharge the duties of the camp and field with mu-
tual intelligence and concert, an advantage of peculiar
1 See the Federalist, No. 29 ; 2 Elliot's Deb. 5^85, 28(), 287, 289, 307,
810.
2 1 Tucker's Black. Comm. App. 27.3. »
84 CONSTITUTION OF TriE U. STATES. [bOOK III.
moment in the operations of an army ; and it will ena-
ble them to acquire, in a much shorter period, that
degree of proficiency in military functions, which is
essential to their usefulness. Such an uniformity, it is
evident, can be attained only through the superintend-
ing power of the national government.^
§ 1200. This clause was not in the original draft of
the constitution ; but it was subsequently referred to a
committee, who reported in favour of the power ; and
after considerable discussion it was adopted in its pres-
ent shape by a decided majority. The first clause in
regard to organizing, arming, disciplining, and governing
the militia, was passed by a vote of nine states against
two ; the next, referring the appointment of officers to
the states, after an ineffectual effort to amend it by
confining the appointment to officers under the rank of
general officers, was passed without a division ; and the
last, referring the authority to train the militia accord-
ing to the discipline prescribed by congress, was pass-
ed by a vote of seven states against four.^
^ 1201. It was conceived by the friends of the con-
stitution, that the power thus given, with the guards,
reserving the appointment of the officers, and the train-
ing of the militia to the states, made it not only wholly
unexceptionable, but in reality an additional security to
the public liberties.^ It was nevertheless made a topic
of serious alarm and powerful objection. It was sug-
gested, that it was indispensable to the states, that they
should possess the control and discipline of the mihtia.
1 The Federalist, No. 4, 29 ; 1 Tucker's Black. Coram. App. 273,
274; 5 Marshall's Life of Washington, ch. 1, p. 54. See Virginia Re-
port and Resolutions, 7 Jan. 1800, p. 54 to 57.
2 Journal of Convention, 221, 203, 272, 280, 28J, 282, 357, 37(i, 377.
3 2 Elliot's Deb. 02, 301, 310, 312, 314, 317.
CH. XXII.] POWERS OF CONGRESS MILITJA. 85
Congress might, under pretence of organizing and dis-
ciplining them, inflict severe and ignominious punish-
ments on theni.^ The power might be construed to be
exclusive in congress. Suppose, then, that congress
should refuse to provide for arming or organizing them,
the result would be, that the states would be utterly
without the means of defence, and prostrate at the feet
of the national government.'^ It might also be said, that
congress possessed the exclusive power to suppress
insurrections, and repel invasions, which would take
from the states all effective means of resistance.^ The
militia might be put under martial law, when not under
duty in the public service.^
§ 1202. It is difficult fully to comprehend the influ-
ence of such objections, urged with much apparent sin-
cerity and earnestness at such an eventful period.
The answers then given seem to have been in their
structure and reasoning satisfactory and conclusive;
But the amendments proposed to the consdtution
(some of which have been since adopted ^) show, that
the objections were extensively felt, and sedulously
cherished. The power of congress over the militia (it
was urged) was limited, and concurrent with that of the
states. The right of governing them was confined to
the single case of their being in the actual service of
the United States, in some of the cases pointed out
in the constitution. It was then, and then only, that
they could be subjected by the general government to
1 2 Elliot's Debates, 301, 307, 310, 312.
2 2 Elliot's Debates, 145, 290, 310, 311, 312 ; Luther Martin's Ad-
dress, Yates's Minutes ; 4 Elliot's Debates, 34, 35.
3 2 Elliot's Debates, 310, 311,312, 314,315, 31(i, 317, 318.
4 2 Elliot's Debates, 287, 288, 294.
5 1 Tuck. Black. Comm. App. 273.
86 CONSTITUTION OF THE U. STATES. [bOOK III.
martial law.^ If congress did not choose to arm, organ-
ize, or discipline the militia, there would be an inherent
right in the states to do it.^ All, that the constitution
intended, was, to give a power to congress to ensure
unitbrmity, and thereby efficiency. But, if congress
refused, or neglected to perform the duty, the states
had a perfect concurrent right, and might act upon it
to the utmost extent of sovereignty.^ As httle pre-
tence was there to say, that congress possessed the
exclusive power to suppress insurrections and repel
invasions. Their power was merely competent to
reach these objects ; but did not, and could not, in
regard to the militia, supersede the ordinary rights of
the states. It was, indeed, made a duty of congress
to provide for such cases ; but this did not exclude the
co-operation of the states.^ The idea of congress in-
flicting severe and ignominious punishments upon the
mihtia in times of peace was absurd.^ It presupposed,
that the representatives had an interest, and would in-
tentionally take measures to oppress them, and alienate
their aff'ections. The appointment of the officers of
the militia was exclusively in the states ; and how
could it be presumed, that such men would ever con-
sent to the destruction of the rights or privileges of
their fellow-citizens.^ The power to discipline and
1 2 Elliot's Debates, 299, 311.
2 2 Elliot's Debates, 298, 294, 312, 313,314, 32G, 327, 439 ; 1 Tuck.
Black, Cornm. App. 272, 273; Rawle on t!ie Constitution, ch. 9, p. Ill,
112; Houston v. Moore, 5 Wiieat. R. 1,21, 45, 48 to 52.
3 Houston V. Moore, 5 Wheat. R. 1, JG, 17, 21, 22, 24, 32, 51, 52, 5G ;
3 Serjreant & Rawle, 169.
4 2 Elliot's Debates, 312,313, 31G, 317, 318, 3G8 ; Rawle on the Con-
stitution, ch. 9, p. 111.
5 2 Elliot's Debates, .304, 309.
G 2 Elliot's Debates, 368 ; Rawle on the Constitution, ch.9, p. 112.
CH. XXII.] POWERS OF CONGRESS MILITIA. 87
train the militia, except when in the actual service of the
United States, was also exclusively vested in the states ;
and under such circumstances, it was secure against
any serious abuses.^ It was added, that any project of
disciplining the whole militia of the United States
\\ould be so utterly impracticable and mischievous,
that it would probably never be attempted. The most,
that could be done, would be to organize and discipline
select corps ; and these for all general purposes, either
of the states, or of the Union, would be Ibund to combine
all, that was useful or desirable in militia services.
^ 1203. It is hardly necessary to say, how utterly
without any practical justification have been the alarms,
so industriously spread upon this subject at the time,
when the constitution was put upon its trial. Upon
two occasions only has it been found necessary on the
part of the general government, to require the aid of
the miUtia of the states, for the purpose of executing
the laws of the Union, suppressing insurrections, or
repelling invasions. The first was to suppress the
insurrection in Pennsylvania in 1794;^ and the other,
to repel the enemy in the recent war with Great
Britain. On other occasions, the militia has indeed
been called into service to repel the incursions of
the Indians ; but in all such cases, the injured states
have led the way, and requested the co-operation of
the national government. In regard to the other pow-
er of organizing, arming, and discipHning the mihtia,
congress passed an act in 1792, ^ more effectually to
J See The Federalist, No. 29 ; 1 Tucker's Black. Comm. App. 274 ;
Rawle on the Constitution, ch. 9. p. 112.
2 The Federalist, No. 29.
3 5 Marsh. Life of Washington, ch. 8, p. 570 to 592 ; 2 Pitk. Hist
ch. 23, p. 421 to 428.
4 Act of 8th May, 1792, ch. 33.
88 CONSTITUTION OF THE U. STATES. [bOOK III.
provide for the national defence, by establishing a uni-
form militia throughout the United States. The sys-
tem provided by this act, with the exception of that
portion, which estabhshed the rules of discipline and
field service, has ever since remained in force. And
the militia are now governed by the same general sys-
tem of discipline and field exercise, which is observed
by the regular army of the United States.^ No jealousy
of military power, and no dread of severe punishments
are now indulged. And the whole militia system has
been as mild in its operation, as it has been satisfac-
tory to the nation.
^ 1204. Several questions of great practical import-
ance have arisen under the clauses of the constitution
respecting the power over the militia, which deserve
mention in this place. It is observable, that power is
given to congress ''io provide for calling forth the militia
" to execute the laws of the Union, suppress insurrec-
" tions, and repel invasions." Accordingly, congress
in 1795, in pursuance of this authority, and to give it a
practical operation, provided by law, " that whenever
the United States shall be invaded, or be in imminent
danger of invasion from any foreign nation or Indian
tribe, it shall be lawful for the president to call forth
such number of the militia of the state, or states most
convenient to the place of danger, or scene of action,
as he may judge necessary, to repel such invasion, and
to issue his order for that purpose to such oflicer or
officers of the mihtia, as he shall think proper." Like
provisions are made for the other cases stated in the
constitution.^ The constitutionality of this act has not
1 Act of leQO, ch. 97 ; Act of 1821, ch. 68.
2 Actof 1795, ch. 101.
C[I. XXII.] POWERS OF CONGRESS MILITIA. 89
been questioned,^ althougli it provides for calling forth
the militia, not only in cases of invasion, but of immi-
nent danger of invasion ; for the power to repel invasions
must include the power to provide against any attempt
and danger of invasion, as the necessary and proper
means to effectuate the object. One of the best means
to repel invasion is, to provide the requisite force for ac-
tion, before the invader has reached the territory of the
nation.^ Nor can there be a doubt, that the president,
who is (as will be presently seen) by the constitution
the commander-in-chief of the army and navy of the
United States, and of the mihtia, when called into the
actual service of the United States, is the proper
functionary, to whom this high and delicate trust ought
to be confided. A free people will naturally be jealous
of the exercise of military power ; and that of calling
forth the militia is certainly one of no ordinary magni-
tude. It is, however, a power limited in its nature to
certain exi2;encies ; and bv whomsoever it is to be ex-
ecuted, it carries with it a corresponding responsibility.
Who is so fit to exercise the power, and to incur the
responsibihty, as the president?
§ 1205. But a most material question arises : By
whom is the exigency (the casus foEderis, if one may
so say) to be decided 1 Is the president the sole and
exclusive judge, whether the exigency has arisen, or
is it to be considered, as an open question, which
every officer, to whom the orders of the president are
1 Houston V. Moore, 5 Wheat. R. 1, CO ; Martin v. Matt, 12 Wheat. R.
19; Houston \. Moore, 3 Sergeant v^c Rawie, 169; Duffield v. Smith,
3 Sergeant & Rawle, 590 ; Vanderlmjdtn v. Youn^, 11 Johns. R. 150.
2 Martin v. Mott, 12 Wheat. R. 19, 29.
3 Martin v. Molt, 12 Wheat. R. 19, 29; Kawlc on Constitution, ch. 13,
p. 155, &c.
VOL. III. 12
90 CONSTITUTION OF THE U. STATES. [bOOK III.
addressed, may decide for himself, and equally open to
be contested by every militia-man, who shall refuse to
obey the orders of the president 1 ^ This question was
much agitated during the late war with Great Britain,
although it is well known, that it had been practically
settled by the government, in the year 1794, to belong
exclusively to the president ; ^ and no inconsiderable
diversity of opinion was then manifested in the heat of
the controversy, pendente lite, et flagrante hello. In
Connecticut and Massachusetts, it was held, that the
governors of the states, to whom orders were addressed
by the president to call forth the militia on account of
danger of invasion, were entided to judge for them-
selves, whether the exigency had arisen ; and were not
bound by the opinion or orders of the president.^
This doctrine, however, was disapproved elsewhere.
It was contested by the government of the United
States ; ^ and was renounced by other states.^
^ 1206. At a very recent period, the question came
before the Supreme Court of the United States for a
judicial decision ; and it was then unanimously deter-
mined, that the authority to decide, whether the exi-
gency has arisen, belongs exclusively to the president;
1 Martin v. Mott, 12 Wheat. R. 19, 29, 30.
2 See Houston v. Moore, 5 Wheat. R. 37. •
3 1 Kent's Coinni. Lcct 12, p. 244 to 250 ; 8 Mass. R. Suppt. 547 et
seq. ; Rawle on the Constitution, ch. 13, p. 155, &c. — At a later period
this doctrine seems to have been abandoned by Massachusetts. See
Report and Resolves of Massachusetts, June 12, 1818, and February 15,
1830. Sec also Resolutions of Maine Lejfislature in 1820.
4 See President Madison's Message of 4th November, 1812, and
President Monroe's Message, and otlier documents stated in Report
and Resolves of Massachusetts, 15th February, 1830.
5 See Vanderhejjden v. Young, 1 1 Johns. R. 150 ; Rawle on tlie Con-
stitution, ch. 13, p. 155 to KJO ; Dujfield v. Smith, 3 Sergeants Rawle,
590.
CH. XXII.] POWERS OF CONGRESS MILITIA. 91
and that his decision is conchisive upon all other per-
sons. The court said, that this construction necessa-
rily resulted h'oni the nature of the power itself, and
from the manifest objects contemplated by the act of
congress. The power itself is to be exercised upon
sudden emergencies, upon great occasions of state, and
under circumstances, which may be vital to the exist-
ence of the Union. A prompt and unhesitating obe-
dience to orders is indispensable to the complete at-
tainment of the object. The service is a military ser-
vice, and the command of a military nature ; and in
such cases, every delay and every obstacle to an effi-
cient and immediate compliance would necessarily tend
to jeopard the public interests. While subordiate ofh-
cers or soldiers are pausing to consider, whether they
ought to obey, or are scrupulously weighing the facts,
upon which the commander-in-chief exercises the right
to demand their services, the hostile enterprize may be
accomplished, without the means of resistance. If the
power of regulating the militia, and of commanding its
services in times of insurrection and invasion, are, as it
has been emphatically said, they are,^ natural incidents
to the duties of superintending the common defence,
and of watching over the internal peace of the confed-
eracy, these powers must be so construed, as to the
modes of their exercise, as not to defeat the great end
in view. If a superior officer has a right to contest the
orders of the president, upon his own doubts, as to the
exigency having arisen, it must be equally the right of
every inferior officer and soldier. And any act done
by any person in furtherance of such orders would
subject him to responsibiUty in a civil suit, in which his
The Federalist, No. 29.
92 CONSTITUTION OF THE U. STATES. [bOOK III.
defence must finally rest upon his ability to establish
the facts by competent proofs. Besides ; in many in-
stances the evidence, upon which the president might
decide, that there was imminent danger of invasion,
might be of a nature not constituting strict technical
proof; or the disclosure of the evidence might reveal
important state secrets, w^hich the public interest, and
even safety, might imperiously demand to be kept in
concealment.^ The act of 1795 was manifestly fram-
ed upon this reasoning. The president is by it ne-
cessarily constituted, in the first instance, the judge
of the existence of the exigency, and is bound to act
according to his belief of the facts. If he does so act,
and decides to call out the mihtia, his orders for this
purpose are in strict conformity to the law ; and it
would seem to follow, as a necessary consequence, that
every act done by a subordinate officer in obedience
to such orders is equally justifiable. The law contem-
plates, that under such circumstances orders shall be
given to carry the power into effect ; and it cannot be,
that it is a correct inference,. that any other person has
a right to disobey them. No provision is made for an
appeal from, or review of the president's opinion. And
whenever a statute gives a descretionary power to
any person to be exercised by him upon his own
opinion of certain facts, the general rule of construction
is, that he is thereby constituted the sole and exclusive
judge of the existence of those facts.^
§1207. It seems to be admitted, that the power to
call forth the militia may be exercised either by requi-
sitions upon the executive of the states ; or by orders
1 Martin v. Mott, 12 Wheat. R. 30, 31.
2 Martin v. Matt, 12 Whnixt. R. 19, 31, 32.
CH. XXII.] POWERS OF CONGRESS MILITIA. 93
directed to such executive, or to any subordinate ofil-
cers of the miUtia. It is not, however, to be understood,
that the state executive is in any case bound to leave
his executive duties, and go personally into the actual
service of the United States.^
§ 1208. The power to govern the militia, when in
the actual service of the United States, is denied by no
one to be an exclusive one. Indeed, from its very na-
ture, it must be so construed ; for the notion of distinct
and independent orders from authorities wholly uncon-
nected, would be utterly inconsistent with that unity of
command and action, on which the success of all mili-
tary operations must essentially depend.^ But there is
nothing in the constitution, which prohibits a state from
calling forth its own militia, not detached into the ser-
vice of the Union, to aid the United States in executing
the laws, in suppressing insurrections^ and in repelling
invasions. Such a concurrent exercise of power in no
degree interferes with, or obstructs die exercise of the
powers of the Union. Congress may, by suitable laws,
provide for the calling forth of the militia, and annex
suitable penalties to disobedience of their orders, and
direct the manner, in which the delinquents may be
tried. But the authority to call forth, and the authority
exclusively to govern, are quite distinct in their nature.
The question, when the authority of congress over the
miUtia becomes exclusive, must essentially depend upon
the fact, when they are to be deemed in the actual ser-
vice of the United States. There is a clear distinction
between calling forth the militia, and their being in
1 See Houston v. Moore, 5 Wheat. R. 1, 15, IG, and Mr. J. Johnson's
Opinion, LI. 86, 37, 40, 4().
2 The Federalist, No. 9, 29 ; Hcuslon v Moore, 5 Whej4. R. 1, 17, 53,
54,55,56,01,02.
94 CONSTITUTION OF THE U. STATES. [bOOK III.
actual service. These are not contemporaneous acts,
nor necessarily identical in their constitutional bearings.
The president is not commander-in-chief of the militia,
except when in actual service ; and not, when they are
merely ordered into service. They are subjected to
martial law only, when in actual service, and not merely
W'hen called forth, before they have obeyed the call.
The act of 1795, and other acts on this subject, mani-
festly contemplate and recognise this distinction. To
bring the militia within the meaning of being in actual
service, there must be an obedience to the call, and
some acts of organization, mustering, rendezvous, or
marching, done in obedience to the call, in the public
service.^
^ 1209. But whether the power is exclusive in con-
gress to punish dehnquencies in not obeying the call
on the militia, by their own courts-martial, has been a
question much discussed, and upon which no inconsid-
erable contrariety of opinion has been expressed. That
it may, by law, be made exclusive, is not denied. But
if no such law be made, whether a state may not, by its
ow^n laws, constitute courts-martial to try and punish
the delinquencies, and inflict the penalties prescribed
by the act of congress, has been the point of controver-
sy. It is now settled, that, under such circumstances,
a state court-martial may constitutionally take cogniz-
ance of, and inflict the punishment. But a state cannot
add to, or vary the punishments inflicted by the acts of
congress upon the delinquents.^
1 Houston V. Moore, 5 Wheat. R. 1, 17, 18, '20, 53, GO, 6\, G3, 64 ;
Rawle on Const, ch. 13,p. IT)!).
a Houston v. Moore, 5 Wheat. R. 1,2, 3, 24, 28, 44, 60 to 75 ; Rawle
on Const, cli. 13, p. 158, 159 ; Houston v. Moore, 3 Serg. it Rawle, 169 ;
Duffield V. Smith, 3 Sernr. ^ R. 590 ; 1 Kent's Comm. Lect. 12, p. 248,
249, 250 ; Serg. on Const, ch. 28, [ch. 30] ; Meade's case, 5 Hall's Law
Journ. 536 ; Bollon''s case, 3 Serg. & Rawle, 176, note.
CH. XXII.] POWERS OF CONGRESS MILITIA. 95
^ 1210. A question of another sort was also made
during the late war with Great Britain ; whether the
militia, called into the actual service oC the United
States, were to be governed and commanded by any offi-
cer, but of the same militia, except the president of the
United States ; in other words, whether the president
could delegate any other officer of the regular army, of
equal or superior rank, to command the militia in his
absence. It was held in several of the Eastern states,
that the mihtia were exclusively under the command of
their own officers, subject lo the personal orders of the
president ; and that he could not authorize any officer
of the army of the United States to command them in
his absence, nor place them under the command of any
such officer.* This doctrine was deemed inadmis-
sible by the functionaries of the United States. It
has never yet been settled by any definitive judgment
of any tribunal competent to decide it.^ If, howev-
ever, the doctrine can be maintained, it is obvious,
that the pubhc service must be condnually liable to
very great embarrassments in all cases, where the
militia are called into the public service in connexion
with the regular troops.
1 8 Mass. Rep. Supp. 549, 550 ; 5 Hall's Amer. Law Journ. 495 ;
1 Kent's Comm. Lect. 12, p. 244 to 247.
2 1 Kent's Comm. Lect. 12, p. 244 to 247.
96 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XXIII.
POWER OVER SEAT OF GOVERNMENT AND OTHER
CEDED PLACES.
^1211. The next power of congress is, " to exercise
" exclusive legislation in all cases whatsoever over such
" district, not exceeding ten miles square, as may, by
"cession of particular states and the acceptance ofcon-
" gress, become the seat of the government of the
"United States ; and to exercise like authority overall
" places purchased by the consent of the legislature of
" the state, in which the same shall be, for the erection
"of forts, magazines, arsenals, and other needful
" BUILDINGS."
§ 1212. This clause was not in the original draft of
the constitution ; but was referred to a committee, who
reported in its favour ; and it was adopted into the con-
stitution with a sHght amendment without any apparent
objection.-^
^ 1213. The indispensable necessity of complete
and exclusive power, on the part of the congress, at
the seat of government, carries its own evidence with
it. It is a power exercised by every legislature of the
Union, and one might say of the World, by virtue of its
general supremacy. Without it not only the pubHc
authorities might be insulted, and their proceedings be
interrupted with impunity; but the public archives
might be in danger of violation, and destruction, and a
dependence of the members of the national government
on the state authorities for protection in the discharge
of their functions be created, which would bring on
the national councils the imputation of being subjected
1 Journ. of Convent. 22% 260. 328, 329, 358.
CH. XXIII.] POWERS OF CONGRESS CESSIONS. 97
to undue awe and influence, and might, in times of
high excitement, expose their Uves to jeopardy. It
never could be sate to leave in possession of any state
the exclusive power to decide, whether the functiona-
ries of the national government should have the moral
or physical power to perform their duties.^ It might
subject the favoured state to the most unrelenting jeal-
ousy of the other states, and introdixe earnest contro-
versies from time to time respecting the removal of
the seat of government.
^ 1214. Nor can the cession be justly an object of
jealousy to any state ; or in the slightest degree impair
its sovereignty. The ceded district is of a very narrow
extent ; and it rests in the option of the state, whether
it shall be made or not. There can be litde doubt, that
the inhabitants composing it would receive with thank-
fulness such a blessing, since their own importance
would be thereby increased, their interests be subserv-
ed, and their rights be under the immediate protection
of the representatives of the whole Union.^ It is not
improbable, that an occurrence, at the very close of the
revolutionary war, had a great efiect in introducing this
provision into the constitution. x4t the period alluded
to, the congress, then sitting at Philadelphia, was sur-
rounded and insulted by a small, but insolent body of
mutineers of the continental army. Congress applied
to the executive authority of Pennsylvania for defence ;
but, under the ill-conceived constitution of the state at
that time, the executive power was vested in a council
consisting of thirteen members ; and they possessed, or
exhibited so htde energy, and such apparent intimida-
tion, that congress indignantly removed to New- Jersey,
1 The Federalist, No. 43 ; 2 Elliot's Deb. 92, 321, 322, 326.
2 The Federalist, No. 43 ; 2 Elliot's Deb. 92, 321, 322, 326, 327.
VOL. III. 13
98 CONSTITUTION OF THE U. STATES. [bOOK III.
whose inhabitants welcomed them with promises of
defending them. Congress remained for some time at
Princeton without being again insuUed, till, for the sake
of greater convenience, they adjourned to Annapohs.
The general dissatisfaction with the proceedings of
Pennsylvania, and the degrading spectacle of a fugitive
cono-ress, were sufficiently striking to produce this
remedy.^ Indeed, if such a lesson could have been lost
upon the people, it would have been as humiUating to
their intelligence, as it would have been offensive to
their honour.
^1215. And yet this clause did not escape the common
fate of most of the powers of the national government.
It was represented, as peculiarly dangerous. It may, it
was said, become a sort of public sanctuary, with exclu-
sive privileges and immunities of every sort. It may be
the very spot for the establishment of tyranny, and of
refuge of the oppressors of the people. The inhabi-
tants will be answerable to no laws, except those of
congress. A powerful army may be here kept on foot;
and the most oppressive and sanguinary laws may be
passed to govern the district.^ Nay, at the distance of
fourteen years after the constitution had quietly gone
into operation, and this power had been acted upon
with a moderation, ' as commendable, as it ought to be
satisfactory, a learned commentator expressed regret
at the extent of the power, and intimated in no inex-
plicit terms his fears for the future. "A system of
1 Rawle on Const, ch. 9, p. 112, 113.
2 2 Elliot's Debates, .320, 321, 323, 324, 325, 320; Id. 115. — Amend-
ments limiting the power of congress to such regulations, as respect
the police and good government of tl)e district, were proposed by seve-
ral of the states at the time of the adoption of the constitution. But
they have been silently abandoned. 1 Tucker's Black. Comm. App.
27G, 374.
CH. XXIII.] POWERS OF CONGRESS CESSIONS. 99
laws," says he, "incompatible with the nature and prin-
ciples of a representative democracy, though not likely
to be introduced at once, may be matured by degrees,
and diffuse its influence through the states, and fmally
lay the foundation of the most important changes in the
nature of the federal government. Let foreigners be
enabled to hold lands, and transmit them by inherit-
ance, or devise ; let the preference to males, and the
rights of primogeniture be revived with the doctrine of
entails ; and aristocracy will neither want a ladder to
climb by, nor a base for its support.^ "
§ 1216. What a superstructure to be erected on
such a narrow foundation ! Several of the states now
permit foreigners to hold and transmit lands ; and yet
their liberties are not overwhelmed. The whole South,
before the revolution, allowed and cherished the sys-
tem of primogeniture ; and yet they possessed, and
transmitted to their children their colonial rights and
privileges, and achieved under this very system the
independence of the country. The system of entails is
still the law of several of the states ; and yet no danger
has yet assailed them. They possess, and enjoy the
fruits of repubhcan industry and frugality, without any
landed or other aristocracy. And yet the petty dis-
trict of ten miles square is to overrule in its policy and
legislation all, that is venerable and admirable in state
legislation ! The states, and the people of the states
are represented in congress. The district has no rep-
resentatives there ; but is subjected to the exclusive
legislation of the former. And yet congress, at home
republican, will here nourish aristocracy. The states
will here lay the foundation for the destruction of their
i 1 Tucker's Black. Coinm. App. 277.
100 CONSTITUTION OF THE U. STATES. [bOOK III.
own institutions, rights, and sovereignty. At home,
they will follow the legislation of the district, instead of
guiding it by their precept and example. They will
choose to be the engines of tyranny and oppression in
the district, that they may become enslaved within their
own territorial sovereignty. What, but a disposition to
indulge in all sorts of delusions and alarms, could create
such extraordinary flights of imagination? Can such
things be, and overcome us, like a summer's cloud,
without our special wonder? At this distance of time,
it seems wholly unnecessary to refute the suggestions,
which have been so ingeniously urged. If they prove
any thing, they prove, that there ought to be no gov-
ernment, because no persons can be found w^orthy of
the trust.
§ 1217. The seat of government has now, for more
than thirty years, been permanently fixed on the river
Potomac, on a tract of ten miles square, ceded by the
states of Virginia and Maryland. It was selected by
that great man, the boast of ail America, the first in war,
the first in peace, and the first in the hearts of his coun-
trymen. It bears his name ; it is the monument of his
fame and wisdom. May it be for ever consecrated to
its present noble purpose, capitoli immobile saxmn !
§ 1218. The inhabitants enjoy all their civil, religious,
and political rights. They live substantially under the
same laws, as at the time of the cession, such changes
only having been made, as have been devised, and
sought by themselves. They are not indeed citizens
of any state, entitled to the privileges of such ; but they
are citizens of the United States. They have no im-
mediate representatives in congress. But they may
justly boast, that they live under a paternal govern-
ment, attentive to their wants, and zealous for their
CH. XXin.] POWERS OF CONGRESS CESSIONS. 101
welfare. They, as yet, possess no lociil legislature ;
and have, as yet, not desired to possess one. A learn-
ed commentator has doubted, whether congress can
create such a legislature, because it is the delegation of
a delegated authority.^ A very different opinion was
expressed by the Federalist; for it was said, that "a
municipal legislature for local purposes, derived from
their own sulFrages, will of course be allowed them." ^
In point of fact, the corporations of the three cities
within its limits possess and exercise a delegated power
of legislation under their charters, granted by congress,
to the full extent of their municipal wants, without any
constitutional scruple, or surmise of doubt.
^ 1219. The other part of the power, giving exclu-
sive legisladon over places ceded for the erection of
forts, magazines, &c., seems still more necessary for
the public convenience and safety. The public money
expended on such places, and the public property
deposited in them, and the nature of the military du-
ties, which may be required there, all demand, that
they should be exempted from state authority. In
truth, it would be wholly improper, that places, on which
the security of the entire Union may depend, should
be subjected to the control of any member of it. The
power, indeed, is wholly unexceptionable ; since it can
only be exercised at the will of the state; and therefore
it is placed beyond all reasonable scruple.^ Yet, it did
not escape without the scrutinizing jealousy of the op-
ponents of the constitution, and was denounced, as
dangerous to state sovereignty.^
1 1 Tucker's Black. Comin. App. 278.
2 The Federalist, No. 43.
3 The Federalist, No. 43. See also United Stales v. Bevaus, 3 WJieat,
R. 33G, 388.
4 2 Elliot's Debates, 145.
102 CONSTITUTION OF THE U. STATES. [bOOK III,
§ ] 220. A great variety of cessions have been made
by the states under this power. And generally there
has been a reservation of the right to serve all state
process, civil and criminal, upon persons found therein.
This reservation has not been thought at all inconsis-
tent with the provision of the constitution ; for the state
process, quoad hoc, becomes the process of the United
States, and the general power of exclusive legislation
remains with congress. Thus, these places are not
capable of being made a sanctuary for fugitives, to ex-
empt them from acts done within, and cognizable by,
the states, to which the territory belonged ; and at the
same time congress is enabled to accompUsh the great
objects of the power.^
^ 1221. The power of congress to exercise exclu-
sive jurisdiction over these ceded places is conferred
on that body, as the legislature of the Union ; and can-
not be exercised in any other character. A law pass-
ed in pursuance of it is the supreme law of the land,
and binding on all the states, and cannot be defeated
by them. The power to pass such a law carries with
it all the incidental powers to give it complete and
effectual execution ; and such a law may be extended in
its operation incidentally throughout the United States,
if congress think it necessary so to do. But if intended
to have efficiency beyond the district, language must
be used in the act expressive of such an intention ;
otherwise it will be deemed purely local.^
1 Commonwealth X. Ckmj,S Mass. R. 72; United States v. Cornell,
2 Mason R. (iO ; Hawlc on Constitution, ch. 27, p. 238 ; Sergeant on
Constitution, ch. 28, [ch. 30;] 1 Kent's Comm. Lect. 19, p. 402 to 404.
2 Cohens V. Virginia, (J Wheat. R. 2G4, 424, 425, 426, 427, 428 ; Ser-
geant on Constitution, ch. 28, [ch. 30 ;] I Kent. Comm. Lect. 19, p. 402
to 404 ; Rawlc on Constitution, ch. 27, p. 238, 239 ; Loughborough v.
Blakt, 5 Wlicat R. 322, 324.
CH. XXIII.] POWERS OF CONGRESS CESSIONS. 103
^ 1222. It follows from this review of the chiusc,
that the states cannot take cognizance of any acts done
in the ceded places after the cession ; and, on the other
hand, the inhabitants of those places cease to be inhab-
itants of the state, and can no longer exercise any civil
or political rights under the laws of the state.^ But if
there has been no cession by the state of the place,
although it has been constantly occupied and used,
under purchase, or otherwise, by the United States for
a fort, arsenal, or other constitutional purpose, the state
jurisdiction still remains complete and perfect.^
^ 1223. Upon a recent occasion, the nature and
effect of the exclusive power of legislation, thus given
by the constitution in these ceded places, came under
the consideration of the Supreme Court, and was much
discussed. It was argued, that all such legislation by
congress was purely local, like that exercised by a ter-
ritorial legislature ; and was not to be deemed legislation
by congress in the character of the legislature of the
Union. The object of the argument was to establish,
that a law, made in or for such ceded places, had no
extra-territorial force or obligation, it not being a law
of the United States. The reasoning of the court
affirming, that such an act was a law of the United
States, and that congress in passing it acted, as the
legislature of the Union, can be best conveyed in their
own language, and would be impaired by an abridg-
ment.
1 8 Mass. R. 72 ; 1 Hall's Journal of Jurisp. 53 ; 1 Kent's Coram. Lect.
19, p. 403, 404.
2 The People v. Godfrey, 17 Johns. R. 225; Commonwealth v. Yoiinsr,
1 Hall's Journal of Jurisp. 47; 1 Kent's Coram. Lcct. 19, p. 403, 404 ;
Sergeant on Constitution, cli. 28, [cli. 30 ;] Rawlc on Constitution,
ch. 27, p. 238 to 240.
104 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1224. "In the enumeration of the powers of con-
gress, which is made in the eighth section of the first
article, we find that of exercising exclusive legislation
over such district, as shall become the seat of govern-
ment. This power, like all others, which are specified,
is conferred on congress, as the legislature of the Un-
ion ; for, strip them of that character, and they would
not possess it. In no other character can it be exer-
cised. In legislating for the district, they necessarily
preserve the character of the legislature of the Union ;
for it is in that character alone, that the constitution
confers on them this power of exclusive legislation.
This proposition need not be enforced. The second
clause of the sixth article declares, that ' this constitu-
tion, and the laws of the United States, which shall be
made in pursuance thereof, shall be the supreme law
of the land.' The clause, which gives exclusive juris-
diction, is unquestionably a part of the constitution, and,
as such, binds all the United States. Those, who con-
tend, that acts of congress, made in pursuance of this
power, do not, like acts made in pursuance of other
powers, bind the nation, ought to show some safe and
clear rule, which shall support this construction, and
prove, that an act of congress, clothed in all the forms,
which attend other legislative acts, and passed in virtue
of a power conferred on, and exercised by congress, as
the legislature of the Union, is not a law of the United
States, and does not bind them..
^ 1225. " One of the gendemen sought to illustrate
his proposition, that congress, when legislating for the
district, assumed a distinct character, and was reduced
to a mere local legislature, whose laws could pos-
sess no obligation out of the ten miles square, by a
reference to the complex cliaracter of this court. It is,
CH. XXIII.] POWERS OF CONGRESS — CESSIONS. 105
they say, a court of common law, and a court of equity.
Its character, when sitting as a court of common law,
is as distinct from its character, when sitting as a court
of equity, as if the .powers belonging to those depart-
ments were vested in different tribunals. Though
united in the same tribunal, they are never confounded
with each other. Without inquiring, how far the union
of different characters in one court may be applicable, in
principle, to the union in congress of the power of ex-
clusive legislation in some places, and of limited legis-
lation in others, it may be observed, that the forms of
proceedings in a court of law are so totally unlike the
forms of proceedings in a court of equity, that a mere
inspection of the record gives decisive information of
the character, in which the court sits, and consequently
of the extent of its powers. But if the forms of pro-
ceeding were precisely the same, and the court the
same, the distinction would disappear.
§ 1226. " Since congress legislates in the same-forms^
and in the same character, in virtue of powers of equal
obligation conferred in the same instrument, when ex-
ercising its exclusive powers of legislation, as well as
when exercising those, which are limited, we must in-
quire, whether there be any thing in the nature of this
exclusive legislation, which necessarily confines the
operation of the laws, made in virtue of this power, to
the place, with a view to which they are made. Con-
nected with the power to legislate within this dis-
trict, is a similar power in forts, arsenals, dock-yards,
&c. Congress has a right to punish murder in a
fort, or other place within its exclusive jurisdiction j
but no general right to punish murder committed
within any of the states. In the act for the pun-
ishment of crimes against the United States, murder
VOL. III. 14
106 CONSTITUTION OF THE U. STATES. [bOOK III.
committed within a fort, or any other place or district
of country, under the sole and exclusive jurisdiction of
the United States, is punished with death. Thus con-
gress legislates in the same act, under its exclusive and
its limited powers.
^ 1227. "The act proceeds to direct, that the body
of the criminal, after execution, may be delivered to a
surgeon for dissection, and punishes any person, who
shall rescue such body during its conveyance from the
place of execution to the surgeon, to whom it is to be
delivered. Let these actual provisions of the law, or
any pother provisions, which can be made on the sub-
ject, be considered with a view to the character, in
which congress acts, when exercising its powers of ex-
clusive legisladon. If congress is to be considered
merely as a local legislature, invested, as to this object,
with powers hmited to the fort, or other place, in which
the murder may be committed, if its general powers can-
not come in aid of these local powers,how^ can the offence
be tried in any other court, than that of the place, in
which it has been committed? How can the offender
be conveyed to, or tried in, any other place ? How can
he be executed elsewhere? How can his body be
conveyed through a country under the jurisdiction of
another sovereign, and the individual punished, who,
within that jurisdiction, shall rescue the body ? Were
any one state of the Union to pass a law for trying a
criminal in a court not created by itself, in a place
not within its jurisdiction, and direct the sentence
to be executed without its territory, we should all
perceive, and acknowledge its incompetency to such
a course of legislation. If congress be not equally
incompetent, it is, because that body unites the pow-
ers of local legislation with those, which are to op-
CH. XXIII.] POWERS OF COXGRESS CESSIONS. 107
erate throui>h the Union, and may use the last in aid
of the first ; or, because the power of exercisini^; e.\( lu-
sive legislation draws after it, as an incident, the power
of making that legislation effectual; and the incidental
power may be exercised throughout the Union, be-
cause the principal pov>'er is given to that bod\', as the
legislature of the Union.
^ 12*28. "So, in the same act, a person, wIk), having
knowledge of the commission of murder, or other fel-
ony, on the high seas, or within any fort, arsenal, dock-
yard, magazine, or other place, or district of country
within the sole and exclusive jurisdiction of the United
States, shall conceal the same, &c. he shall be adjudged
guilty of misprision of felony, and shall be adjudged to be
imprisoned, &c. It is clear, that congress cannot punish
felonies generally ; and, of consequence, cannot punish
misprision of felony. It is equally clear, that a state
legislature, the state of ]\[aryland for example, cannot
punish those, who, in another state, conceal a felony
committed in Maryland. How^, then, is it, that con-
gress, legislating exclusively for a fort, punishes those,
who, out of that fort, conceal a felony committed within
it?
^ 1229. "The solution, and the only solution of the
difficulty, is, that the power vested in congress, as the
legislature of the United States, to legislate exclusively
within any place ceded by a state, carries with it, as an
incident, the right to make that power effectual. If a
felon escape out of the state, in which the act has been
committed, the government cannot pursue him into an-
other state, and apprehend him there ; but must de-
mand him from the executive power of that other state.
If congress were to be considered merely, as the local
legislature for the fort, or other place, in which the of-
108 CONSTITUTION OF THE U. STATES. [bOOK III.
fence might be committed, then this principle would
apply to them, as to other local legislatures ; and the
felon, who should escape out of the fort, or other place,
in which the felony may have been committed, could
not be apprehended by the marshal, but must be de-
manded from the executive of the state. But we know,
that the principle does not apply ; and the reason is,
that congress is not a local legislature, but exercises
this particular power, hke all its other powers, in its
high character, as the legislature of the Union. The
American people thought it a necessary power, and
they conferred it for their own benefit. Being so con-
ferred, it carries with it all those incidental powers,
which are necessary to its complete and^efFectual exe-
cution.
^ 1230. "Whether any particular law be designed
to operate without the district or not, depends on the
words of that law. If it be designed so to operate,
then the question, whether the power, so exercised, be
incidental to the power of exclusive legislation, and be
warranted by the constitution, requires a consideration
of that instrument. In such cases the constitution and
the law must be compared and construed. This is the
exercise of jurisdiction. It is the only exercise of it,
which is allowed in such a case." ^
1 Cohens v. Virginia, 6 WhccA. R. 424 to 429.
CH. XXIV.] POWERS OF CONGRESS-l.NClUlwNTAL. 1 (J9
CHAPTER XXIV.
POWERS OF CONGRESS INCIDENTAL.
§ 1231. The next power of congress is, " to make
"all laws, which shall be necessary and proper for
"carrying into execution the foregoing powers, land
" all other powers vested by this constitution in 1 the
" government of the United States, or in any depart-
" ment, or ofhcer thereof."
§ 1232. Few powers of the government were at the
time of the adoption of the constitution assailed with
more severe invective, and more declamatory intem-
perance, than this.^ And it has ever since been made
a theme of constant attack, and extravagant jealousy.*
Yet it is difficult to perceive the grounds, upon which
it can be maintained, or the logic, by which it can be
reasoned out. It is only declaratory of a truth, which
would have resulted by necessary and unavoidable im-
plication from the very act of establishing the national
government, and vesting it with certain powers. What
is a power, but the ability or faculty of doing a thing ?
What is the ability to do a thing, but the power of em-
ploying the means necessary to its execution ? What
is a legislative power, but a power of making laws ?
What are the means to execute a legislative power, but
laws? What is the power for instance, of laying
and collecting taxes, but a legislative power, or a
power to make laws to lay and collect taxes ? What
1 The Federalist, No. 33, 44 ; 1 Elliot's Deb. 293, 294, 300 ; 2 Elliot's
Deb. 196, 342.
2 1 Tuck. Black. Comra. App. 286, 287 ; 4 Elliot's Deb. 216, 217, 224,
225.
110 CONSTITUTION OF THE U. STATES. [bOOK III.
are the proper means of executing such a power, but
necessary and proper laws ? In truth, the constitution-
al operation of the government would be precisely the
same, if the clause were obliterated, as if it were re-
peated in every article.^ It would otherwise result, that
the power could never be exercised ; that is, the end
would be required, and yet no means allowed. This ^
would be a perfect absurdity. It would be to create
powers, and compel them to remain for ever in a torpid,
dormant, and paralytic state. It cannot, therefore, be
denied, that the powers, given by the constitution, imply
the ordinary means of execution ;^ for without the
substance of the power the constitution would be a
dead letter. Those, who object to the article, must
therefore object to the form, or the language of the
provision. Let us see, if any better could be devised.^
^ 1233. There are four possible methods, which the
convention might have adopted on this subject. First,
they might have copied the second article of the con-
federation, which Vv'ould have prohibited the exercise
of any power not expressly delegated. If they had
done so, the consdtution would have been construed
wdth so much rigour, as to disarm it of all real autho-
rity ; or with so much latitude, as altogether to destroy
the force of the restriction. It is obvious, that no im-
portant power delegated by the confederation was, or
indeed could be executed by congress, without recurring
more or less to the doctrine of construction or implica-
J The Federalist, No. 33 ; 2 Elliot's Debates, 19G ; Hamilton on Bank,
1 Hamilton's Works, 121 ; M'Culloch v. Jlanjland, 4 Whcaton's R. 419.
2 M'Culloch V. Manjland, 4 Wheat. R. 409 ; 4 Elliot's Debates, 217,
218,220,221.
3 The Federalist, No. 44. See also President Monroe's Exposition
and Message, 4th of May, 1822, p. 47 ; 3 Elliot's Deb. 318.
CH. XXIV.] POWERS OF COXGRESS -INriDKXTAL. I 1 1
tion.^ It had, for instance, power to estahlish courts
for, the trial of prizes and piracies, to horiow money,
and emit bills of credit. J3ut how could these powers
be put in operation without some other implied powers
and means 1 The truth is, that, under the confedera-
tion, congress was from this very clause driven to Uhe
distressing alternative, either to violate the articles by a
broad latitude of construction, or to suffer the powers
of the government to remain prostrate, and the public
service to be wholly neglected. It is notorious, that
they adopted, and were compelled to adopt the former
course ; and the country bore them out in what might
be deemed an usurpation of authority.^ The past ex-
perience of the country was, therefore, decisive against
any such restriction. It was either useless, or mischie-
vous.^ ' '
^ 1234. Secondly. The convention might have at-
tempted a positive enumeradon of the powers compre-
hended under the terms, necessary and proper. The
attempt would have involved a complete digest of laws
on every subject, to which the constitution relates. It
must have embraced all future, as well as all present
exigencies, and been accommodated to all times, and
all occasions, and all changes of national situation and
character. Every new application of the general power
must have been foreseen and specified; for the particu-
lar powers, which are the means of attaining the objects
of the general power, must, necessarily, vary with those
objects ; and be often properly varied, when the objects
1 The Federalist, No. 44.
2 See TJie Federalist, No. 38, 44 ; 4 Wheat. R. 423 ; 4 Elliot's
Deb. 218, 219.
3 M'CuUoch V. Maryland, 4 Wjjcat. R. 40G, 407, 423.
112 CONSTITUTION OF THE IT. STATES. [bOOK III,
remain the same.' Who does not at once perceive,
that such a course is utterly beyond human reach and
foresight?^ It demands a wisdom never yet given
to man ; and a knowledge of the future, which belongs
only to Him, w hose providence directs, and governs all.
§ 1235. Thirdly. The convention might have at-
tempted a negative enumeration of the powers, by spe-
cifying the powers, which should be excepted from the
general grant. It will be at once perceived, that this
task w^ould have been equally chimerical with the fore-
going ; and w^ould have involved this additional objec-
tion, that in such a case, every defect in the enumera-
tion would have been equivalent to a positive grant of
authority. If, to avoid this consequence, they had at-
tempted a partial enumeration of the exceptions, and
described the residue by the general terms, "not neces-
sary or proper," it must have happened, that the enu-
meration w^ould comprehend a few^ exceptions only, and
those only, which were most prominent; and therefore
the least likely to be abused ; and that others w^ould be
less forcibly excepted under the residuary clause, than
if there had not been any partial enumeration of ex-
ceptions.^
§ 1236. Fourthly. The convention might have
been wholly silent on this head ; and then (as has been
already seen) the auxiliary powders, or means to carry
into execution the general powers, would have resulted
to the government by necessary implication ; for
wherever the end is required, the means are autho-
rized ; and wherever a general powder to do a thing
1 Tlic Federalist, No. 44 ; 2 Elliot's Deb. 223.
2 M'Culloch V. JIanjIand, 4 Wheat. R. 407 ; 4 Elliot's Deb. 223, 224 ;
Anderson v. Dunn, 6 Wheat. R. 204, 225, 226.
3 The Federalist, No. 44.
CH. XXIV.] POWERS OF CONGRESS-INCIDENTAL. 113
is given, every particular power necessary for doing it,
is included. If this last course had been adopted,
every objection, now urged against the clause, would
have remained in full force ; and the omission might
have been made in critical periods a ground to assail
the essential powers of the Union.^
§ 1237. If, then, the clause imports no more, than
would result from necessary implication, it may be ask-
ed, why it was inserted at all. The true answer is,
that such a clause was peculiarly useful, in order to
avoid any doubt, Avhich ingenuity or jealousy might
raise upon the subject. Much plausible reasoning
might be employed by those, who were hostile to the
Union, and in favour of state power, to prejudice the
people on such a subject, and to embarrass the govern-
ment in all its reasonable operations. Besides ; as
the confederation contained a posiUve clause, restrain-
ing the authority of congress to powers expressly
granted, there was a fitness in declaring, that that rule
of interpretation should no longer prevail. The very
zeal, indeed, with which the present clause has been
always assailed, is the highest proof of its importance
and propriety. It has narrowed down the grounds of
hostility to the mere interpretation of terms.^
§ 1238. The plain import of the clause is, that con-
gress shall have all the incidental and instrumental
powers, necessary and proper to carry into execution
all the express powers. It neither enlarges any power
specifically granted ; nor is it a grant of any new
power to congress. But it is merely a declaration for
the removal of all uncertainty, that the means of carry-
1 The Federalist, No. 44.
2 The Federalist, No. 33, 41.
VOL. III. 15
114 CONSTITUTION OF THE U. STATES. [BOOK III.
ing into execution those, otherwise granted, are included
in the grant.^ Whenever, therefore, a question arises
concerning the constitutionahty of a particular power, the
first question is, whether the power be expressed in the
constitution. If it be, the question is decided. If it
be not expressed, the next inquiry must be, whether it is
properly an incident to an express power, and necessary
to its execution. If it be, then it may be exercised by
congress. If not, congress cannot exercise it.^
§ 1239. But still a ground of controversy remains
open, as to the true interpretation of the terms of
the clause ; and it has been contested with no small
share of earnestness anfl vigour. What, then, is the
true constitutional sense of the words "necessary
and proper" in this clause? It has been insisted by
the advocates of a rigid interpretation, that the word
"necessary" is here used in its close and most intense
meaning ; so that it is equivalent to absolutely and
indispensably necessary. It has been said, that the
constitution allows only the means, which are neces-
sary ; not those, which are merely convenient for effect-
ing the enumerated powers. If such a latitude of
construction be given to this phrase, as to give any
non-enumerated power, it will go far to give every
one ; for there is no one, which ingenuity might not
1 Some few statesmen have contended, that the clause gave farther
powers, than mere incidental powers. But their reasoning- does not
seem very clear or satisfactory. See Governor Randolph's Remarks,
2 Elliot's Debates, 342; Mr. Gerry's Speech in Febuary, 1791,4 Elliot's
Debates, 225, 227. These Speeches are, however, valuable for some
strikini? views, which they present, of the propriety of a liberal construc-
tion of the words.
2 See Virginia Report and Resolutions, Jan., 1800, p. 83, 34 ; 1 Tuck.
Black. Comm. App. 287, 288; President Monroe's Exposition and Mes-
sage, 4th of May, 1S22, p. 47: 5 Marshall's Wash. App. note 3 ; I Ham-
ilton's Works, J17, 121.
CH. XXIV.] POWERS OF CONGRESS-INCIDENTAL. 115
torture into a convenience in some way or other to
some one of so long a list of enumerated powers. It
would swallow up all the delegated powers, and reduce
the whole to one phrase. Therefore it is, diat the con-
stitution has restrained them to the nccessarij means ;
that is to say, to those means, without which the grant of
the power would be nugatory, A httle difference in the
degree of convenience cannot constitute the necessity,
which the constitution refers to.^
§ 1240. The effect of this mode of interpretation is
to exclude all choice of means ; or, at most, to leave to
congress in each case those only, which are most direct
and simple. If, indeed, such implied powers, and such
only, as can be shown to be indispensably necessary, are
within the purview of the clause, there will be no end to
difficulties, and the express powers must practically be-
come a mere nuUity.^ It will be found, that the opera-
tions of the government, upon any of its powers, will
rarely admit of a rigid demonstration of the necessity
(in this strict sense) of the particular means. In most
cases, various systems or means may be resorted to,
to attain the same end ; and yet, with respect to each,
it may be argued, that it is not consdtutional, because
it is not indispensable ; and the end may be obtained
by other means. The consequence of such reasoning
would be, that, as no means could be shown to be con-
stitutional, none could be adopted.'"^ For instance, con-
1 4 Jefferson's Corresp. 525, 526; 4 Elliot's Del). 216, 217, 224, 225,
267; M'CuUoch v. Maryland, 4 VVJieat. R. 412,413.
2 Hamilton on Eank, 1 Hamilton's Works, 119; 5 Marshall's Wash.
App. notes, p. 9; Mr. Madison, 4 Elliot's Deb. 223.
3 United Slates v. Fisher, 2 Cranch, 358 ; 1 Peters's Cond. R. 421 ;
Hamilton on Bank, 1 Hamilton's Works, 119; 5 Marshall's Wash, note
3, p. 9, 10; Mr. Madison, 4 Elliot's Deb. 223.
116 COJS^STITUTIOJf OF THE U. STATES. [bOOK III.
gress possess the power to make war, and to raise ar-
mies, and incidentally to erect fortifications, and purchase
cannon and ammunition, and other munitions of war.
But war may be carried on without fortifications, can-
non, and ammunition. No particular kind of arms can
be show^n to be absolutely necessary ; because various
sorts of arms of diff'erent convenience, powder, and
utility are, or may be resorted to by different nations.
What then becomes of the power? Congress has
power to borrow money, and to provide for the payment
of the public debt ; yet no particular method is indis-
pensable to these ends. They may be attained by va-
rious means. Congress has power to provide a navy;
but no particular size, or form, or equipment of ships
is indispensable. The means of providing a naval es-
tablishment are very various ; and the applications of
them admit of infinite shades of opinion, as to their
convenience, utility, and necessity. What then is to be
done? Are the powers to remain dormant? Would
it not be absurd to say, that congress did not possess
the choice of means under such circumstances, and
ought not to be empowered to select, and use any
means, which are in fact conducive to the exercise of
the powers granted by the constitution?^ Take an-
other example ; congress has, doubdess, the authority,
under the power to regulate commerce, to erect light-
houses, beacons, buoys, and public piers, and authorize
the employment of pilots.^ But it cannot be affirmed,
that the exercise of these powers is in a strict sense
necessary ; or that the power to regulate commerce
would be nugatory without establishments of this na-
1 United Slates v. Fisher, 2 Cranch. R. 358 ; I Peters's Condens. R.
451.
2 Sec 4 Elliot's Debates, 205, 280.
CH. XXIV.] POWERS OF CONGRESS-INCIDENTAL. 117
ture.^ In truth, no particular regulation of commerce
can ever be shown to be exclusively and indispensal.>ly
necessary ; and thus we should be driven to admit, that
all regulations are within the scope oi" the power, or
that none are. If there be any general princi})le, which
is inherent in the very definition of government, and
essential to every step of the progress to be made by
that of the United States, it is, that every power, vested
in a government, is in its nature sovereign, and in-
cludes, by force of the term, a right to employ all the
means requisite, and fairly applicable to the attainment
of the end of such power; unless they are excepted in
the constitution, or are immoral, or are contrary to the
essential objects of political society.^
^ 1241. There is another difficulty in the strict con-
struction above alluded to, that it makes the constitu-
tional authority depend upon casual and temporary
circumstances, which may produce a necessity to-day,
and change it to-morrow. This alone shows the fallacy
of the reasoning. The expediency of exercising a
particular power at a particular time must, indeed, de-
pend-, on circumstances ; but the constitutional right of
exercising it must be uniform and invariable ; the same
to-day as to-morrow.^
^ 1242. Neither can the degree, in which a measure
is necessary, ever be a test of the legal right to adopt
it. That must be a matter of opinion, (upon which
different men, and different bodies may form opposite
judgments,) and can only be a test of expediency.
1 Hamilton on Bank, 1 Hamilton's Works, 120.
2 Hamilton on Bank, 1 Hamilton's Works, 112.
3 Hamilton on Bank, 1 Hamilton's Works, 117 ; 5 Marshall's W^ash.
App. note 3. p. 8.
118 COXSTTTUTION OF THE U. STATES. [bOOK III.
The relation between the measure and the end, be-
tween the nature of the means employed towards the
execution of a power, and the object of that power,
must be the criterion of constitutionality ; and not the
greater or less of necessity or expediency.^ If the
legislature possesses a right of choice as to the means,
who can limit that choice ? Who is appointed an um-
pire, or arbiter in cases, where a discretion is confided
to a government? The very idea of such a controlling
authority in the exercise of its powers is a virtual de-
nial of the supremacy of the government in regard to
its powers. It repeals the supremacy of the national
government, proclaimed in the consdtution.
^ 1243. It is equally certain, that neither the gram-
matical, nor the popular sense of the word. " necessary,"
requires any such construction. According to both,
"necessary" often means no more than needful, requi-
site^ incidental, useful, or conducive to. It is a common
mode of expression to say, that it is necessary for a
government, or a person to do this or that thing, when
nothing more is intended or understood, than that the
interest of the government or person requires, or will
be promoted by the doing of this or that thing. Every
one's mind will at once suggest to him many illustra-
tions of the use of the word in this sense.^ To em-
ploy the means, necessary to an end, is generally un-
derstood, as employing any means calculated to produce
the end, and not as being confined to those single means,
without which the end would be entirely unattainable.
^ 1244. Such is the character of human language,
1 Hamilton on Bank, 1 Hamilton's Works, 119, 120; 5 Marshall's
Wash. App. note 3, p. 9, 10; jWCulloch v. Manjland, 4 Wheat. R. 423.
2 Hamilton on Bank, 1 Hamilton's Works, 118; 5 Marshall's Wash.
App. note 3, p. 9.
CH. XXIV.] POWERS OF CONGRESS-mClDENTAL. 119
that no word conveys to the mind in all situations one
single defniite idea ; and nothing is more common, than
to use words in a figurative sense. Almost all compo-
sitions contain words, which, taken in their rigorous
sense, would convey a meaning, different from that,
which is obviously intended. It is essential to just in-
terpretation, that many words, which import some-
thing excessive, should be understood in a more
mitigated sense ; in a sense, which common usage justi-
fies. The word "necessary" is of this description.
It has not a fixed character peculiar to itself. It admits
of all degrees of comparison ; and is often connected
with other words, which increase or diminish the im-
pression, which the mind receives of the urgency it
imports. A thing may be necessary, very necessary,
absolutely or indispensably necessary. It may be httle
necessary, less necessary, or least necessary. To no
mind would the same idea be conveyed by any two of
these several phrases. The tenth section of the first
article of the constitution furnishes a strong illustration
of this very use of the word. It contains a prohibition
upon any state to " lay any imposts or duties, &lc. ex-
" cept what may be absolutely necessary for executing
"its inspection laws." No one can compare this clause
with the other, on which we are commenting, without
being struck with the conviction, that the word ''abso-
lutely,'' here prefixed to "necessary," was intended to
disdnguish it from the sense, in which, standing alone,
it is used in the other.^
* jypCuUoch V. Maryland, 4 Wheaton's R. 418 to 415. — In this case
(4 Wiieaton's R. 411 to 425,) there is a very rlaborat ar^niment of the
Supreme Court upon the whole of this subject, a portion of which has
been already extracted in the preceding Commentaries, on the rules
of interpretation of the constitution.
120 CONSTITUTION OF ^HE U. STATES. [bOOK III.
^ 1245. That the restrictive interpretation must be
abandoned, in regard to certain powers of the govern-
ment, cannot be reasonably doubted. It is universally
conceded, that the power ot punishment appertains to
sovereignty, and may be exercised, whenever the sove-
reign has a right to act, as incidental to his constitutional
powers. It is a means for carrying into execution all
sovereign powers, and may be used, although not in-
dispensably necessary. If, then, the restrictive inter-
pretation must be abandoned, in order to justify the
constitutional exercise of the power to punish ; whence
is the rule derived, which would reinstate it, when the
government would carry its powers into operation, by
means not vindictive in their nature? If the word,
"necessary" means needful, requisite, essential, condu-
cive to, to let in the power of punishment, why is it not
equally comprehensive, when applied to other means
used to facilitate the execution of the powers of the
government '] ^
§ 1246. The restrictive interpretation is also con-
trary to a sound maxim of construction, generally
admitted, namely, that the powers contained in a con-
stitution of government, especially those, which con-
cern the general administration of the affairs of the
country, such as its finances, its trade, and its defence,
ougTit to be liberally expounded in advancement of the
public good. This rule does not depend on the par-
ticular form of a government, or on the particular de-
marcations of the boundaries of its powers ; but on the
nature and objects of government itself. The means,
by which national exigencies are provided for, national
inconveniences obviated, and national prosperity pro-
1 M'Culloch V. Maryland, 4 WJieat. R. 418.
CH. XXIV.] POWERS OF CONGRESS-INCIDENTAL. 121
moted, are of such infinite variety, extent, and com-
plexity, that there must of necessity be great latitude
of discretion in the selection, and application of those
means. Hence, consequently, the necessity and pro-
priety of exercising the authorities, entrusted to a gov-
ernment, on principles of liberal construction.^
^ 1247. It is no valid objection to this doctrine to
say, that it is calculated to extend the powers of the
government throughout the entire sphere of state legis-
lation. The same thing may be said, and has been said,
in regard to every exercise of power by implication and
construction. There is always some chance of error,
or abuse of every power ; but this furnishes no ground
of objection against the povver ; and certainly no reason
for an adherence to the most rigid construction of its
terms, which would at once arrest the whole move-
ments of the government.^ The remedy for any
abuse, or misconstruction of the power, is the same, as
in similar abuses and misconstructions of the state gov-
ernments. It is by an appeal to the other departments
of the government ; and finally to the people, in the
exercise of their elective franchises.^
§ 1248. There are yet other grounds against the
restrictive, interpretation derived from the language,
and the character of the provision. The language is,
that congress shall have power " to make all laws, which
" shall be necessary and proper,'^ If the word " neces-
sary" were used in the strict and rigorous sense con-
tended for, it would be an extraordinary departure from
the usual course of the human mind, as exhibited in
solemn instruments, to add another word "proper;"
1 Hamilton on Bank, 1 JTamilton's Works, 120, 121.
2 IJaniilton on Bank, 1 Hamilton's Works, 122.
3 The Federalist, No. 33, 44.
VOL. III. 16
122 CONSTITUTION OF THE U. STATES. [bOOK III.
the only possible effect of which is to qualify that strict
and rigorous meaning, and to present clearly the idea
of a choice of means in the course of legislation.^ If
no means can be resorted to, but such as are indispen-
sably necessary, there can be neither sense, nor utility
in adding the other word ; for the necessity shuts out
from view all consideration of the propriety of the
means, as contradistinguished from the former. But if
the intention was to use the word "necessary" in its
more hberal sense, then there is a peculiar fitness in the
other word. It has a sense at once admonitory, and
directory. It requires, that the means should be, bo7id
fide, appropriate to the end.
^ 1249. The character of the clause equally forbids
any presumption of an intention to use the restrictive
interpretation. In the first place, the clause is placed
among the powers of congress, and not among the
hmitaUons on those powers. In the next place, its
terms purport to enlarge, and not to diminish, the pow-
ers vested in the government. It purports, on its face,
to be an additional power, not a restriction on those al-
ready granted.^ If it does not, in fact, (as seems the
true construction,) give any new powers, it affirms the
right to use all necessary and proper means to carry into
execution the other powers ; and thus makes an express
power, what would otherwise be merely an implied
power. In either aspect, it is impossible to construe
it to be a restriction. If it have any effect, it is to re-
move the implication of any rest/iction. If a restric-
tion had been intended, it is impossible, that the
framers of the constitution should have concealed it
1 Jl'Culloch V. Maryland, 4 Wlioat R. 418, 410.
2 M'Culloch V. Man/laud, 4 W lie at. II 419, 420.
CH. XXIV.] POWERS OF CONGRESS-INCIDEJNTAL. 123
under phraseology, which purports to enlarge, or at least
give the most ample scope to the other powers. There
was every motive on their part to give point and clear-
ness to every restriction of national power ; lor they
well knew, that the national government would be
more endangered in its adoption by its supposed
strength, than by its weakness. It is inconceivable,
that they should have disguised a restriction upon its
powers under the form of a grant of power. They
would have sought other terms, and have imposed the
restraint by negatives.' And what is equally strong,
no one, in or out of the state conventions, at the time
when the constitution was put upon its deliverance
before the people, ever dreamed of, or suggested, that
it contained a restriction of power. The whole argu-
ment on each side, of attack and of defence, gave it the
positive form of an express power, and not of an ex-
press restriction.
^ 1250. Upon the whole, the result of the most
careful examination of this clause is, that, if it does not
enlarge, it cannot be construed to restrain the powers
of congress, or to impair the right of the legislature to
exercise its best judgment, in the selection of mea-
sures to carry into execution the constitutional powers
of the national government. The motive for its in-
sertion doubtles was, the desire to remove all possible
doubt respecting the right to legislate on that vast mass
of incidental powers, which must be involved in the
constitution, if that instrument be not a splendid pageant,
or a delusive phantom of sovereignty. Let the end be
leo-itimate ; let it be within the scope of the constitu-
tion ; and all means, which are appropriate, which are
1 MCulloch V. Maryland, 4 Wheat. R. 420.
124 COiVSTITUTION OF THE U. STATES. [bOOK III.
plainly adapted to the end, and which are not prohib-
ited, but are consistent with the letter and spirit of the
instrument, are constitutional.^
^ 1251. It may be w^ell, in this connexion, to men-
tion another sort of implied power, which has been
called with great propriety a resulting power, arising
from the aggregate powers of the national government.
It will not be doubted, for instance, that, if the United
States should make a conquest of any of the territories
of its neighbours, the national government would possess
sovereign jurisdiction over the conquered territory.
This would, perhaps, rather be a result from the whole
mass of the powers of the national government, and
from the nature of political society, than a consequence
or incident of the powers specially enumerated.^ It
may, however, be deemed, if an incident to any, an
incident to the power to make war. Other instances
of resulting powers will easily suggest themselves.
The United States are nowhere declared in the con-
stitution to be a sovereignty entitled to sue, though
jurisdiction is given to the national courts over contro-
versies, to which the United States shall be a party.
It is a natural incident, resulting from the sovereignty
and character of the national government.^ So the
United States, in their political capacity, have a right
to enter into a contract, (although it is not expressly
provided for by the constitution,) for it is an incident to
their general right of sovereignty, so far as it is appro-
1 MCulloch V. JJanjland, 4 Wheat. R. 420, 4^1, 42^. i:ee also 4 El-
liot's Dcbatos, 220, 221, 222,223,224, 225; 2 Elliot's Debates, 196,342 ;
5 .\iarsh. Wash. App. No. 3 ; 2 American Museum, 536; ^/Indersonv.
Dunn, 6 Wheat R. 204, 225, 22G ; Hamilton on Bank, 1 Hamilton's
Works, 111 to 123.
2 Hamilton on Bank, 1 Hamilton's Works, 115.
3 See D'liran v. United Slates, 3 Wheat. R. 173, 179, 180.
CH. XXIV.] POWERS OF CONGRESS -INCIDENTAL. 125
priate to any of the ends of the government, and within
the constitutional range of its powers.^ So congress
possess power to punish offences committed on board
of the public ships of war of the government by per-
sons not in the mihtary or naval service of the United
States, whether they are in port, or at sea ; for the juris-
diction on board of public ships is every where deem-
ed exclusively to belong to the sovereign.^
§ 1252. And not only may implied powers, but im-
plied exemptions from state autiiority, exist, although
not expressly provided for by law. The collectors of
the revenue, the carriers of the mail, the mint establish-
ment, and all those institutions, which are public in
their nature, are examples in point. It has never been
doubted, that all, who are employed in them, are pro-
tected, while in the line of their duty, from state control ;
and yet this protection is not expressed in any act of
congress. It is incidental to, and is imphed in, the
several acts, by which those institutions are created ;
and is preserved to them by the judicial department,
as a part of its functions.^ A contractor for supplying
a military post with provisions cannot be restrained
from making purchases within a state, or from trans-
porting provisions, to the place, at which troops are
stationed. He could not be taxed, or fined, or lawfully
obstructed, in so doing.^ These incidents necessarily
flow from the supremacy of the powers of the Union,
within their legitimate sphere of action.
§ 1253. It would be almost impracticable, if it were
not useless, to enumerate the various instances, in
A United Slates v. Tingeij, 5 Peters's R. ] 15.
'-i United States v. Bevans, 3 Wlieaton's R. 38S ; The Exchange,
7 Cranch, IIG ; S. C. 2 Feters's Cond. K. 439.
3 Osborn v. Bank of U. States, 9 Wheat R. 365, 366.
4 Id. 3G7.
126 CONSTITUTION OF THE U. STATES. [bOOK III.
which congress, in the progress of the government,
have made use of incidental and implied means to ex-
ecute its powers. They are almost infinitely varied in
their ramifications and details. It is proposed, how-
ever, to take notice of the principal measures, which
have been contested, as not within the scope of the
powers of congress, and which may be distinctly traced
in the operations of the government, and in leading party
divisions.^
1 Some minor points will be found in the debates collected in 4 Elliot's
Debates, 139, 141, 229, 234, 235, 238, 239, 240, 243, 249, 251, 252, 261,
205, 2G(3, 270, 271, 280. Tliere is no express power given by the consti-
tution to erect forts, or mag-azines, or liglit-houses, or piers, or buoys, or
public buildings, or to make surveys of the coast; but they have been
constantly deemed incidental to the general powers. Mr. Bayard's
Speech in 1807,(4 Elliot's Debates, 2G5 :) Mr. Pickering's Speech, 1817,
(4 Elliot's Debates, 280.)
CH. XXV.] POWERS OF CONGRESS BANK. \-27
CHAPTER XXV.
IJVCIDENTAL POWERS ]VAriONAL RANK.
§ 1254. One of the earliest and most important
measures, which gave rise to a question of constitution-
al power, was the act chartering the hank of the United
States in 1791. That question has often since been
discussed ; and though the measure has been repeat-
edly sanctioned by congress, by the executive, and by
the judiciary, and has obtained the hke favour in a
great majority of the states, yet it is, up to this very hour,
still debated upon constitutional grounds, as if it were
still new, and untried. It is impossible, at this time, to
treat it, as an open question, unless the constitution is
forever to remain an unsettled text, possessing no per-
manent attributes, and incapable of having any ascer-
tained sense ; varying uidi every change of doctrine,
and of party ; and delivered over to interminable
doubts. If the constitution is to be only, Avhat the ad-
ministration of the day may wish it to be ; and is to
assume any, and all shapes, which may suit the opin-
ions and theories of public men, as they successively
direct the public councils, it will be difficult, indeed,
to ascertain, what its real value is. It cannot possess
either certainty, or uniformity, or safety. It will be one
thing to-day, and another thing to-morrow, and again
another thing on each succeeding daj., The past will
furnish no guide, and the future no security. It an ill
be the reverse of a law ; and entail upon the country
the curse of that miserable servitude, so much abhorred
and denounced, where all is vague and uncertain in
the fundamentals of government.
128 CO>rSTITUTrON OF THE U. STATES. [bOOK III.
§ 1255. The reasoning, upon \Yhicli the constitution-
ality of a national bank is denied, has been already in
some degree stated in the preceding remarks. It turns
upon the strict interpretation of the clause, giving the
auxiliar}^ po\vers necessary, and proper to execute the
other enumerated powers. It is to the following effect :
The power to incorporate a bank is not among those
enumerated in the constitution.^ It is known, that the
very power, thus proposed, as a means, was rejected,
as an end, by the convention, which formed the consti-
tution. A proposition v/as m.ade in that body, to au-
thorize congress to open canals, and an amendatory
one to empower them to create corporations. But the
whole was reiecied ; and one of the reasons of the re-
jecdon urged in debate was, that they then would have
a power to create a bank, which vvould render the great
cities, where there were prejudices and jealousies on
that subject, adverse to the adoption of the constitution.^
In the next place, all the enumerated powers can be
carried into execution without a bank. A bank, there-
fore, is not necessary, and consequently not author-
ized by this clause of the constitution. It is urged,
that a bank will give great facility, or convenience to
the collection of taxes. If this were true, yet the
constitution allows only the means, which are necessary,
and not merely those, which are convenient for effect-
ing the enumerated powers. If such a latitude of con-
struction were allowed, as to consider convenience, as
justifying the use of such means, it would swallow up
all the enumerated powers.^ Therefore, the constitution
1 4 Jefferson's Correspondence, 523, 526 ; Id. 506.
2 Ibid; 4 Elliot's Debates, 2J9.
CH. XXV.] POWERS OF CONGRESS HA^•K. 129
restrains congress to those means, williout \vhi( li ilic
power would be nugatory.^
§ 1256. Nor can its convenience be satisfactorily
established. Bank-bills may be a more convenient
vehicle, than treasury orders, for the purposes of that
department. But a httle dilference in the degree of
convenience cannot constitute the necessity contem-
plated by the constitution. Besides ; the local and
state banks now in existence are competent, and would
be willing to undertake all the agency required for
those very purposes by the government. And if they
are able and willing, this establishes clearly, that there
can be no necessity for estabhshing a national bank.^
If there would ever be a superior conveniency in a na-
tional bank, it does not follow, that there exists a power
to establish it, or that the business of the country can-
not go on very well without it. Can it be thought, that
the constitution intended, that for a shade or two of
convenience, more or less, congress should be authoriz-
ed to break down the most ancient and fundamental
laws of the states, such as those against mortmain, the
laws of alienage, the rules of descent, the acts of dis-
tribution, the laws of escheat and forfeiture, and the
laws of monopoly ? Nothing but a necessity, invincible
by any other means, can jusdfy such a prostration of
laws, which constitute the pillars of our whole system of
jurisprudence.^ If congress have the power to create one
corporation, they may create all sorts ; for the power is
1 4 Jefferson's Correspondence, 523, 525, 52G ; 5 Marsli. ^Vash. App.
Note 3.
2 Ibid ; 4 Elliot's Debates, 220.
3 4 Jefferson's Correspondence, 523, 52(3, 527 ; 5 Marsh. Wash. A]»p.
Note 3 ; 1 Hamilton's Works, 130.
VOL. III. 17
130 CONSTITUTION OF THE U. STATES. [bOOK III.
no where limited ; and may even establish monopolies.^
Indeed this very charter is a monopoly.^
^ 1257. The reasoning, by which the constitu-
tionality of the national bank has been sustained,
is contained in the following summary. The pow-
ers confided to the national government are un-
questionably, so far as they exist, sovereign and su-
preme.^ It is not, and cannot be disputed, that the
power of creating a corporation is one belonging to
sovereignty. But so are all other legisladve powers ;
for the original power of giving the law on any subject
whatever is a sovereign power. If the national govern-
ment cannot create a corporation, because it is an ex-
ercise of sovereign power, neither can it, for the same
reason, exercise any other legislative power.^ This
consideration alone ought to put an end to the abstract
inquiry, whether the national government has power to
erect a corporation, that is, to give a legal or artificial
capacity to one or more persons, distinct from the nat-
ural capacity.^ For, if it be an incident to sovereign-
ty, and it is not prohibited, it must belong to the
national government in relation to the objects entrusted
to it. The true difference is this ; where the authority
of a government is general, it can create corporations
in all cases ; where it is confined to certain branches
of legislation, it can create corporations only as to those
cases.^ It cannot be denied, that implied powers may
be delegated, as well as express. It follows, that a
1 4 Elliot's Debates, 217, 219, 224, 225.
2 4 Elliot's Debates, 219, 220, 22;l.
3 Haunlton on Bank, 1 1 faini]ton':> Works, IKl; 4 Wheat. R. 405,
406, 400, 4 JO.
4 JWCuUoch v.J\I(tnihnul, 4 Wlieat. R. 400.
^> Hamilton on Rank, 1 Hamilton's Works, ll.'i, 114, 121.
6 Hamilton on Bank, 1 Hamilton's Works, 113, 114, 131.
CH. XXV.] POWERS OF CONOnESS HANK. 1 iU
power to erect corporations may as well be implied, as
any other thing, if it be an instrument or means of car-
rying into execution any specified power. Tlie only
question in any case must be, whether it be such an
instrument or means, and have a natural relation to any
of the acknowledged objects of government. 11ius,
congress may not erect a corporation for superintending
the police of the city of Philadelphia, because they have
no authority to regulate the police of that city. But
if they possessed the authority to regulate the police of
such city, they might, unquestionably, create a corpo-
ration for that purpose ; because it is incident to the
sovereign legislative power to regulate a thing, to employ
all the means, which relate to its regulation, to the best
and greatest advantage.^
^ 1258. A strange fallacy has crept into the reason-
ing on this subject. It has been supposed, that a cor-
poration is some great, independent thing ; and that the
power to erect it is a great, substantive, independent
power ; whereas, in truth, a corporation is but a legal
capacity, quality, or means to an end ; and the power
to erect it is, or may be, an impUed and incidental power.
A corporation is never the end, for which other powers
are exercised ; but a means, by which other objects
are accomplished. No contributions are made to charity
for the sake of an incorporation ; but a corporation is
created to administer the charity. No seminary of
learning is instituted in order to be incorporated ; but
the corporate character is conferred to subserve the
purposes of education. No city was ever built with the
sole object of being incorporated ; but it is incorporated
as afrordin2: the best means of being w^ll governed.
1 Hamilton on Bank, I Hamilton's Works, 115, lUi, 130, 131, 13G.
132 COXSTITUTIOX OF THE U. STATES. [bOOK III.
So a mercantile company is formed with a certain capi-
tal for carrying on a particular branch of business.
Here, the business to be prosecuted is the end. The
association, in order to form the requisite capital, is the
primary means. If an incorporation is added to the
association, it only gives it a new quality, an artificial
capacity, by which it is enabled to prosecute the busi-
ness with more convenience and safety. In truth, the
power of creating a corporation is never used for its
own sake ; but for the purpose of effecting something
else. So that there is not a shadow of reason to say,
that it may not pass as an incident to powers expressly
given, as a mode of executing them.^
^ 1259. It is true, that among the enumerated pow-
ers we do not find that of establishing a bank, or creat-
ing a corporation. But we do find there the great
powers to lay and collect taxes ; to borrow money ; to
regulate commerce; to declare and conduct war; and
to raise and support armies and navies. Now, if a
bank be a fit means to execute any or all of these pow-
ers, it is just as much implied, as any other means. If
it be " necessary and proper " for any of them, how is
it possible to deny the authority to create it for such
purposes ? ^ There is no more propriety in giving this
power in express terms, than in giving any other inci-
dental powers or means in express terms. If it had
been intended to grant this power generally, and. to
make it a distinct and independent power, having no
relation to, but reaching beyond the other enume-
rated powers, there would then have been a propriety
in giving it in express terms, for otherwise it would not
1 JWCullorh V. Man/land, 4 Wheat. R. 411; Hamilton on Bank,
1 Hamilton's \Vorl;s, \U), 117, l;3t).
2 M'CiiVnrk V. Maryland, 4 Wheat. R. 406, 407, 408, 409, 410, 411.
CH. XXV.] POWERS OF CONGRESS BANK. 133
exist. Thus, it was proposed in the convention, to <X^\c. a
general power " to grant charters of incorporation ; " — to
"grant charters of incorporation in cases, where tlie pub-
"hc good may require them, and the authority of a sin-
"gle state may be incompetent ; " ^ — and " to grant let-
"ters of incorporation for canals, &c." ^ If either of these
propositions had been adopted, there would have been an
obvious propriety in giving the power in express terms ;
because, as to the two former, the power was general
and unlimited, and reaching far beyond any of the other
enumerated powers ; and as to the latter, it might be
far more extensive than any incident to the other enu-
merated powers.^ But the rejection of these propo-
sitions does not prove, that congress in no case, as an
incident to the enumerated powers, should erect a cor-
poration ; but only, that they should not have a sub-
stantive, independent power to erect corporations
beyond those powers.
^ 1260. Indeed, it is most manifest, that it never
could have been contemplated by the convention, that
congress should, in no case, possess the power to erect
a corporation. What otherwise would become of the
territorial governments, all of which are corporations
created by congress ? There is no where an express
power given to congress to erect them. But under the
confederation, congress did provide for their erection,
as a resuUing and implied right of sovereignty, by the
celebrated ordinance of 1787 ; and congress, under the
1 Journ. of Convention, p. S6'0.
2 Journ. of Convention, p. 37G. — In the first cong-ress of 1789, when
the amendments proposed by cono;ress were before the ilouse of Repre-
sentatives for consideration, Mr. Gerry moved to add a clause, " That
congress erect no company of merchants with exclusive advantages of
commerce." The proposition was negatived. 2 Lloyd's Deb. 257.
3 JPCulloch v. Maryland, iWhesit. R. 42], 422.
134 CONSTITUTION OF THE U. STATES. [bOOK III.
constitution, have ever since, without question, and with
the universal approbation of the nation, from time to time
created territorial governments. Yet congress derive
this power only by implication, or as necessary and
proper, to carry into effect the express powder to regu-
late the territories of the United States.^ In the con-
vention, two propositions were made and referred to a
committee at the same time with the propositions
already stated respecting granting of charters, " to dis-
pose of the unappropriated lands of the United States,"
and " to institute temporary governments for new
states arising therein." Both these propositions shared
the same fate, as those respecting charters of incorpora-
tion. But what would be thought of the argument,
built upon this foundation, that congress did not possess
the power to erect territorial governments, because
these propositions were silently abandoned, or annulled
in the convention 7
§ 1261. This is not the only case, in which congress
may erect corporations. Under the power to accept
a cession of territory for the seat of government, and to
exercise exclusive legislation therein ; no one can doubt,
that congress may erect corporations therein, not only
publicjbu t private corporations.^ They have constantly
exercised the power ; and it has never yet been breath-
ed, that it was unconstitutional. Yet it can be exercised
only as an incident to the power of general legislation.
And if so, why may it not be exercised, as an incident
to any specific power of legislation, if it be a means to
attain the objects of such power ?
§ 1262. That a national bank is an appropriate means to
carry into effect some of the enumerated powers of the
1 J\rCulloch V. Maryland, 4 Wheat. R. 422 ; Hamilton on Bank,
1 Hamilton's VVorlcs, 1:35, 136.
2 Hamilton on Bunk, 1 Hamilton's Works, 128, 129, 135.
CH. XXV.] POWEIIS OF CONGRESS BANK. 135
government, and that this can be best done by erecting
it into a corporation, may be estal)]ished by the most
satisfactory reasoning. It has a relation, more or less
direct, to the power of collecting taxes, to that of bor-
rowing money, to that of regulating trade between the
states, and to those of raising and maintaining lleets
and armies.^ And it may be added, that it has a most
important bearing upon the regulation of currency be-
tween the states. It is an instrument, which has been
usually applied by governments in the administration of
their fiscal and financial operations.^ And in the present
times it can hardly require argument to prove, that it is
a convenient, a useful, and an essential instrument in
the fiscal operations of the government of the United
States.^ This is so generally admitted by sound and in-
telligent statesmen, that it would be a waste of dme to
endeavour to establish the truth by an elaborate survey
of the mode, in which it touches the administration of all
the various branches of the powers of the government.^
1 Hamilton on Bank, 1 Hamilton's Works, p. 138.
2 Hamilton on Bank, 1 Hamilton's Works, p. 152, 153.
3 M'Culloch V. Marijland, 4 Wheat. R. 4-22, 423.
4 In Mr. Hamilton's celebrated Argument on the Constitutionality of
the Bank of the United States, in Feb. 179J, there is an admirable ex-
, position of the whole of this branch of the subject. As the document is
rare, the following passages are inserted :
" It is presumed to have been satisfactorily shown, in the course of
the preceding observations, 1. That the power of the government, as to
the objects intrusted to its management, is, in its nature, sovereign.
2. That the right of erecting corporations, is one, inherent in, and in-
separable Irom, the idea of sovereign power. 3. That the position, that
the government of the United States can exercise no power, but such as
is delegated to it by its constitution, does not militate against this prin-
ciple. 4. That the word necessary/, in the general clause, can hiave no
restrictive operation, derogating from the force of this principle; indeed,
that the degree, in which a measure is, or is not necessary, cannot be a
test of constitutional right, but of expediency only. 5. That the power
to erect corporations is not to be considered, as an independent and
136 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1263. In regard to the suggestion, that a propo-
sition was made, and rejected in the convention to con-
fer this very power, what was the precise nature or ex-
substantive power, but as an incidental and auxiliary one ; and was^
therefore, more properly left to implication, than expressly granted.
6. Thattlie principle in question does not extend the power of the gov-
ernment beyond the prescribed limits, because it only affirms a power
to incorporate for purposes within the sphere of the specified powers.
And lastly, that the right to exercise such a power, in certain cases, is
unequivocally granted in the most positive and comprehensive terms.
To all which it only remains to be added, that such a power has ac-
tually been exercised in two very eminent instances, namely, in the
erection of two governments ; one northwest of the river Ohio, and the
other southwest ; the last, independent of any antecedent compact.
And there results a full and complete demonstration, that the secretary
of state and attorney-general are mistaken, when they deny generally
the power of the national government to erect corporations.
"It shall now be endeavoured to be shown, that there is a power to
erect one of the kind proposed by the bill. This will be done by trac-
ing a natural and obvious relation between the institution of a bank, and
the objects of several of the enumerated powers of the government; and
by showing, that, polificaUij speaking, it is necessary to the effectual
execution of one or more of those powers. In the course of this inves-
tigation various instances will be stated, by w^ay of illustration, of a
ri^'ht to erect corporations under those powers. Some preliminary ob-
f?ervations may be proper. The proposed bank is to consist of an asso-
ciation of persons for the purpose of creating a joint capital to be em-
ployed, chiefly and essentially, in loans. So far the object is not only
lawful, but it is the mere exercise of a right, which the law allows to
every individual. The bank of New- York, which is not incorporated, is
an example of such an association. The bill proposes, in addition, that
the government shall become a joint proprietor in this undertaking ; and
that it shall permit the bills of the company, payable on demand, to be
receivable in its revenues ; and stipulates, that it shall not grant privi-
leges, similar to those, which are to be allowed to this company, to any
otliers. All this is incontrovertibly within the compass of the discretion
of the government. The only question is, whether it has a right to in-
corporate this company, in order to enable it the more effectually to
accomplish ends, which are in themselves lawful. To establish such a
right, it remains to show the relation of such an institution to one or more
of the specified powers of the government. Accordingly, it is atfirmed,
that it has a relation, more or less direct, to the power of collecting taxes ;
to that of borrowing money ; to that of regulating trade between the
CH. XXV.] POWERS OF COXGKESS BANK. 137
tent of this proposition, or what were the reasons for
refusing it, cannot now be ascertained by any authentic
document, or even by any accurate recollection of the
states ; and to those of raisinir and maintaining fleets and armies. To
the two former, the relation may be said to be immediate. And, in the
last place, it will be argued, that it is clearly within the provision, which
authorizes the making of all needful rules 'dm\ rcgulatioih^ conccrmDg Uie
property of tiie United States, as the same has been practised upon by
the government.
"A bank relates to the collection of taxes in two ways. Indirectb/, by
increasing the quantity of circulating medium, and quickening circula-
tion, which facilitates the means of paying ; dirccilij, by creating a con-
venient species of mediu i , in which they are to be paid. To designate
or appoint the money or thing, in which taxes are to be paid, is not
only a proper, but a necessary, exercise of the power of collecting them.
Arcordinirly, congress, in the law concerning the collection of the du-
ties on imposts and tonnage, have provided, that they shall be payable
in gold and silver. But while it was an indispensable part of the work
to say in what they should be paid, the choice of the specific thing was
mere matter of discretion. The payment might have been required in
the commodities themselves. Taxes in kind, however ill-judged, are not
without precedents even in the United States ; or it might have been
in the paper money of the several states, or in the brlls of the bank of
North-America, New-York, and Massachusetts, all or either of them;
or it might have been in bills issued under the authority of the United
States. No part of this can, it is presumed, be disputed. The appoint-
ment, then, of the money or Minir, in which the caxes are to be paid, is an
incident to tiie power of collection. And among the expedients, which
may be adopted, is that of bills issued under the authority of the United
States. Now the manner of issuing these bills is again matter of dis-
cretion. The government might, doubtless, proceed in the following
manner: It might provide that they should be issued under the direc-
tion of certain officers, payable on demand ; and in order to support their
credit, anrl give them a ready circulation, it might, besides giving them
a currency in its taxes, set apart, out of any monies in its treasury a given
sum, and appropriate it, under the direction of those officers, as a fund
for answering the bills, as presented for payment.
''The constitutionality of all this would not admit of a question, and
yet it would amount to the institution of a bank, with a view to the more
convenient collection of taxes. For the simplest and most precise idea
of a bank is, a deposit of coin or other property, as a fund for circulatmg
a credit upon it, which is to answer tiie purpose of money. That such
an arrangement would be equivalent to the establishment of a bank,
VOL. III. 18
138 CONSTITUTION OF THE U. STATES. [bOOK III.
members. As far as any document exists, it specifies
only canals.^ If this proves any thing, it proves no more,
than that it was thought inexpedient to give a power to
would become obvious, if the place, where the fund to he set apart was
kept, should be made a receptacle of the monies of all other persons, who
should incline to deposit them there for safe keeping-; and would be-
come still more so, if the officers, charged with the direction of the fund
were authorized to make discounts at the usual rate of interest, upon
good security. To deny the power of the government to add this in-
gredient to the plan, would be to refine away all government. A fur-
ther process will still more clearly illustrate the point. Suppose, when
the species of bank, which has been described, wks about to be instituted,
it were to be urged, that in order to secure to it a due degree of confi-
dence, the fund ought not only to be set apart and appropriated general-
ly, but ought to be specifically vested in the officers, who were to have
the direction of it, and in their successors in office, to the end, that it
might acquire the character of private property, incapable of being
resumed without a violation of the sanction, by which the rights of prop-
erty are protected; and occasioning more serious and general alarm :
the apprehension of which might operate as a check upon the govern-
ment. Such a proposition might be opposed by arguments against the
expediency of it, or the solidity of the reason assigned for it ; but it is
not conceivable, what could be urged against its constitutionality. And
yet such a disposition of the thing would amount to the erection of a cor-
poration ; for the true definition of a corporation seems to be this: It is
a legal person, or a person created by act of law ; consisting of one or
more natural persons, authorized to hold property or a franchise in suc-
cession, in a legal, as contradistinguished from a natural capacity. Let
the illustration proceed a step further. Suppose a bank, of the nature,
which has been described, without or v.'ith incorporation, had been insti-
tuted, and that experience had evinced, us it probably would, that beino-
wholly under a public direction, it possessed not the confidence requisite
to the credit of its bills. Suppose also, that by some of those adverse
conjunctures, which occasionally attend nations, there had been a very-
great drain of the specie of the country, so as not only to cause general
distress for want of an adequate medium of circulation; but to pro-
duce, in consequence of that circumstance, considerable defalcations in
the public revenues. Suppose, also, that there was no bank instituted
in any state ; in such a posture of things, would it not be most manifest,
that the incorporation of a bank, like that proposed by the bill, would be
a measure immediately relative to the eflfectual collection of the taxes,
' Journal of Convention, p. 376.
CH. XXV.] POWERS OF CONGRI-SS RANK. 139
incorporate for the purpose of opening canals generally
But very different accounts are given of the import of
the propo.siLon, and of the motives for rejecting it.
and completely within the province of a sovereig-n power of providing
by all laws necessary and proper, for that collection.
"If it be said, that such a state of things would render that neces-
sar\, and therefore constitutional, vv'hich is not so now; the answer to
th's, (and a solid one it doubtless is,) must still be, that wiiicli ha b en
already stated ; circumstances may affect the eiptdimcij of tUc measure,
but they can neither add to, nor diminish its constiluiionalibj . A bank
has a direct relation to the power of borrowing money, because it is an
usual, and in sudden emergencies, an essential instrumant, in the obtain-
ing of loans to government. A nation is threatened with a war; large
sums are wanted on a sudden to make the requisite preparations ; taxes
are laid for the purpose ; but it requires time to obtain the benefit of
them ; anticipation is indispensable. If there be a bank, the supply can
at once be had ; if there be none, loans from individuals must be sought.
The progress of these is often too slow for the exigency ; in some situa-
tions they are not practicable at nil. ] 'r. quently when they a e, it i^
of great consequence to be able to anticipate the product of them by
advances from a bank. The essentiality of such an institution, as an
instrument of loans, is exemplified at this very moment. An Indian ex-
pedition is to be prosecuted. The only fund, out of which the money can
arise consistently with the public engagements, is a tax, which only be-
gins to be collected in July next. The preparations, however, are
instantly to be made. The money must, therefore, be borrowed ; and of
whom could it be borrowed, if there were no public banks ? It happens,
that there are institutions of this kind ; but if there w^ere none, it would
be indispensable to create one. Let it then be supposed, that the neces-
sity existed, (as but for a casualty would be the case,) that proposals
were made for obtaining a loan; that a number of individuals came
forward and said, we are willing to accommodate the government
with this money ; with what we have in hand, and the credit we can
raise upon it, we doubt not of being able to furnish the sum required.
But in order to this, it is indispensable, that we should be incorporated
as a bank. This is essential towards putting it in our power to do what
is desired, and we are obliged, on that account, to make it the consider
aiion or condition of the loan. Can it be believed, tl.at a compliance
with this proposition would be unconstitutional ? Does not this alone
evince the contrary ? It is a ne<-essary part of a power to borrow, to be
able to stipulate the considerations or conditions of a loan. It is evident,
as has been remarked elsewhere, that tiiis is not confined to the mere
stipulation of a franchise. If it may, (and it is not perceived why it may
140 CONSTITUTION OF THE U. STATES. [bOOK III.
Some affirm, that it was confined to the opening of
canals and obstructions of rivers ; others, that it em-
braced banks ; and others, that it extended to the
not,) then the grant of a corporate capacity may be stipulated, as a con-
sideration of tlie loan. There seems to be nothing unfit, or foreign from
the nature of the thing, in giving individuality, or a corporate capacity,
to a number of persons, who are willing to lend a sum of money to the
goveran jiir, the better to enable them to do it, and make them an ordi-
nary instrument of loans in future emergencies of state.
" But the more general view of the subject is still more satisfactory.
The legislative power of borrowing money, and of making all laws ne-
cessary and proper for carrying into execution that power, seems
obviously competent to the appointment of the organ, through which ths
abilities and wills of individuals may be most efficaciously exerted, for
the accommodation of the government by loans. The attorney-general
opposes to this reasoning the following observation. Borrowing money
presupposes the accumulation of a fund to be lent ; and is secondary to
the creation of an ability to lend. This is plausible in theory, but it is
not true in fact. In a great number of cases, a previous accumulation
of a fund, equal to the whole sum required, does not exist; and nothing
more can be actually presupposed, tiian that there exists resources, which,
put into activity to the greatest advantage, by the nature of the opera-
tion with the government, will be equal to the effect desired to be pro-
duced. All the provisions and operations of government must be
presumed to contemplate things as they really are. The institution of a
bank has also a natural relation to the regulation of trade between the
states, in so far as it is conducive to the creation of a convenient me-
dium of exchange between them, and to the keeping up a full circula-
tion, by preventing the frequent displacement of the metals in reciprocal
remittances. Money is the very hinge on which commerce turns. And
this does not mean merely gold and silver ; many other things have
served the purpose with different degress of utility. Paper has been
extensively employed. It cannot, therefore, be adn)itted with the attor-
ney-general, that the regulation of trade between the states, as it con-
cerns the medium of circulation and exchange, ought to be considered
as confined to coin. It is even supposable, that the whole, or the great-
est part, of the coin of the country, might he carried out of it. The sec-
retary of state objects to the relation here insisted upon, by the following
mode of reasoning : To erect a bank, says he, and to regulate commerce,
are very different acts. He who erects a bank, creates a subject of
commerce. So does he, who raises a busliel of wheat, or digs a dollar
out of the mines ; yet neither of these persons regulates commerce
thereby. To make a thing, which may be bought and sold, is not to
CH. XXV.] POWERS OF CONGRESS BANK. 141
power of incorporations generally. Some, again, allege,
that it was disagreed to, because it was thought improjxr
to vest in congress a power of erecting cor[)orations ;
prescribe regulations for bujjing and selliiiir. This is making; tlio rcfrula-
tion of commerce to consist in prescribinir rules for buying and selling.
This, indeed, is a species of regulation of trade, but it is one, which fulls
more aptly within the province of the local jurisdictions, than within that
of the general government, whose care they must have presumed to
have been intended to be directed to those general political arrange-
ments concerning trade, on which its aggregate interests depend, rather
than to the details of buying and selling. Accordingly, such only are
the regulations to be found in the laws of the United States ; whos ■
objects are to give encouragement to the enterprise of our own mer-
chants, and to advance our navigation and manufactures. And it is in
reference to these general relations of commerce, that an establishment,
which furnishes facilities to circulation, and a convenient medium of ex-
change and alienation, is to be regarded as a regulation of trade.
« The secretary of state further urges, that if this was a regulation of
commerce, it would be void, as extending as much to the internal part of
every state, as to its external. But what regulation of commerce does
not extend to the internal commerce of every state ? What are all the
duties upon imported articles, amounting, in some cases, to prohibitions,
but so many bounties upon domestic manufactures, affecting the interest,
of different classes of citizens in different ways ? What are all the pro-
visions in the coasting act, which relate to the trade between district
and district of the same state ? In short, what regulation of trade be-
tween the states, but must affect the internal trade of each state ? what
can operate upon the whole, but must extend to every part ? The rela-
tion of a bank to the execution of the powers, that concern the common
defence, has been anticipated. It has been noted, that at this very mo-
ment, the aid of such an institution is essential to the measure to be pur-
sued for the protection of our frontiers.
"It now remains to show, that the incorporation of a bank is within
the operation of the provision, which authorizes congress to make all
needful rules and regulations concerning the property of the United
States. But it is previously necessary to advert to a distinction, which
has been taken up by the attorney-general. He admits, that the word
property may signify personal property, however acquired; and yet
asserts, that it cannot signify money arising from the sources of revenue
pointed out in the constitution, 'because,' says he, 'the disposal and
regulation of money is the final cause for raising it by taxes.' But it
would be more accurate, to say, that the object to which money is in-
tended to be applied, is thejinal cause for raising it, than that the dis-
142 CONSTITUTION OF THE U. STATES. [bOOK III.
Others, because hey thought it unnecessary to specify
the power ; and inexpedient to furnish an additional
topic of objection to the constitution. In this state
posal and regulation of it, is such. The support of a government, the
support of troops for the common defence, the payment of the public
debt, are the true final causes for raisini^ money. The disposition and
reo-ulatlon o. it, when raised, are the steps, by which it is applied to the
ends, for which it was raised, not the ends themselves. Hence, therefore
the money to be raised by taxes, as well as any other personal property,
must be supposed to come within the meaning, as they certainly do with-
in the letter, of authority to make all needful rules and regulations con-
cerning the property of the United States. A case will make this plainer.
Suppose the public debt discharged, and the funds now pledged for it,
liberated. In some instances it would be found expedient to repeal the
taxes ; in others, the repeal might injure our own industry, our agricul-
ture, and manufactures. In these cases, they would, of course, be
retained. Here, then, would be monies arising from the authorized
sources of revenue, which would not fall within the rule, by which the
attorney-general endeavours to except them from other personal prop-
erty, and from the operation of the clause in question. The monies
being in the coffers of government, what is to hinder such a disposition
to be made of them, as is contemplated in the bill ; or what an incorpora-
tion of the parties concerned, under the clause, which has been cited.
" It is admitted, that, with regard to the v/estern territory, they give
a power to erect a corporation ; that is, to constitute a government.
And by what rule of construction can it be maintained, that the same
words, in a constitution of government, will not have the same effect,
when applied to one species of property as to another, as far as the sub-
ject is capable of it? Or that a legislative power to make all needful
rules and regulations, or to pass all laws necessary and proper concern-
ing the public property, which is admitted to authorize an incorporation,
in one case, will not authorize it in another? will justify the institution
of a government over the Western Territory, and will not justify the
incorporation of a bank, for the more useful management of the money
of the nation ? If it will do the last as well as the first, then, under this
provision alone, the bill is constitutional, because it contemplates, that
the United States shall be joint proprietors of the stock of the bank.
There is an observation of the secretary of state, to this effect, which
may require notice in this place. — Congress, says he, are not to lay
taxes ad UbUum,for any purpose they please, but only to pay the debts, or
provide for the welfare of the Union. Certainly, no inference can be
drawn from this, against the power of applying their money for the insti-
tution of a bank. It is true, that they cannot, without breach of trust,
lay taxes for any other purpose, than the general welfare ; but so neither
CH. XXV.] POWERS OF CONGRESS BANK. 113
of the matter, no inference whatever can he drawn
from it.^ But, whatever may have been the private
intentions of the framers of the constitution, which
can any other government. The welfare of the conirnunity is the only
legitimate end, for which money can he raised on the community. Con-
gress can he considered as only under one restriction, which does
not apply to other governments. Tiiey cannot rightfully apply the
money they raise to any purpose, merely or purely local. But with this
exception, they have as large a discretion, in relation to the application
of money, as any legislature whatever.
"The constitutional test of a right application, must always he, wheth-
er it be for a purpose o^ general or local nature. If the former, there can
be no want of constitutional power. The quality of the object, as how
far it will really promote, or not, the welfare of the Union, must be mat-
ter of conscientious discretion; and the arguments for or against a
measure, in this light, must be arguments concerning expediency or
inexpediency, not constitutional right ; whatever relates to the general
order of the finances, to the general interests of trade, &c., being gener-
al objects, are constitutional ones, for the application of money, A bank,
then, whose bills are to circulate in all the revenues of the country, is
evidently a general object ; and for that very reason, a constitutional
one, as far as regards the appropriation of money to it, whether it will
really be a beneficial one or not, is worthy of careful examination; but
is no more a constitutional point, in the particular referred to, than the
question, whether the western lands shall be sold for twenty or thirty
cents per acre .^ A hope is entertained, that, by this time, it has been
made to appear to the satisfaction of the President, that the bank has a
natural relation to the power of collecting taxes; to that of regulating
trade; ; to that of providing for the common defence ; and that, as the
bill under consideration contemplates the government in the light of a
joint proprietor of the stock of the bank, it brings the case within the
provision of the clause of the constitution, Avhich immediately respects
the property of the United States. Under a conviction, that such a re-
lation subsists, the secretary of the treasury, with all deference, con-
ceives, that it will result, as a necessary consequence from the position,
that all the specified powers of government are sovereign, as to the
proper objects, that the incorporation of a bank is a constitutional meas-
ure : and that the objections, taken to the bill in this respect, are ill-''
founded.
" But, from an earnest desire to give the utmost possible satisfaction
to the mind of the president, on so delicate and important a subject, the
1 Hamilton on Bank, 1 Hamilton's Works, 1Q7.
144 CONSTITUTION OF THE U. STATES. [bOOK III.
can rarely be established by the mere fact of the'r
votes, it is certain, that the true rule of interpreta-
tion is to ascertain the public and just intention from
secretary of the treasury will ask his indulgence, while he gives some
additional illustrations of cases, in which a power of erecting corporations
may be exercised, under some of those heads of the specified powers of the
government, which are alleged to include the rightof incorporating a bank.
1. It does not appear susceptible of a doubt, that if congress had thought
proper to provide in the collection law, that the bonds, to be given for the
duties, should be given to the collector of the district A. or B. as the case
might require, to inure to him and his successors in office, in trust for
the United States ; that it would have been consistent with the constitu-
tion to make such an arrangement. And yet this, it is conceived, would
amount to an incorporation. 2. It is not an unusual expedient of taxa-
tion, to farm particular branches of revenue ; that is, to sell or mortgage
the product of them for certain definite sums, leaving the collection to
the parties, to whom they are mortgaged or sold. There are even ex-
amples of this in the United States. Suppose that there was any par-
ticular branch of revenue, which it was manifestly expedient to place on
this footing, and there were a number of persons willing to engage with
the government, upon condition that they should be incorporated, and
the funds vested in them, as well for their greater safety, as for the more
convenient recovery and management of the taxes ; is it supposable
that there could be any constitutional obstacle to the measure ? It is
presumed, that there could be none. It is certainly a mode of collection,
which it would be in the discretion of the government to adopt; though
the circumstances must be very extraordinary, that would induce the
secretary to think it expedient. 3. Suppose a new and unexplored
branch of trade should present itself with some foreign country. Sup-
pose it was manifest, that to undertake it with advantage, required a
union of the capitals of a number of individuals, and that those individ-
als would not be disposed to embark without an incorporation, as well to
obviate the consequences of a private partnership, which makes every
individual liable in iiis whole estate for the debts of the company to their
utmost extent, as for the more convenient management of the business;
what reason can there be to doubt, that the national government would
have a constitutional right to institute and incorporate such a company ?
None. • They possess a general authority to regulate trade with foreign
countries. This is a mean, which has been practised to that end by all
the principal commercial nations, who have trading companies to this
day, which have subsisted for centuries. Why may not the United
States constitutionaUy employ the means usual in other countries for
attaining the ends intrusted to tliem ? A power to make all needful
CH. XXV.] POWERS OF CONGRESS BANK. 145
the Ian2:ua2:e of the instrument itself, accordin"; to the
common rules applied to all laws. The people, who
adopted the constitution, could know nothing of the
rules and regulations concerning territory, has been construed to mean
a power to erect a government. A power to regulate trade is a power
to make all needful rules and regulations concerning trade. Wliy may
it not, then, include that of erecting a trading company, as well as in
other cases to erect a government ?
" It is remarkable, that the state conventions, who have proposed
amendments in relation to tliis point, have most, if not all of them, ex-
pressed themselves nearly thus : Congress shall not grant monopolies,
nor erect any company with exclusive advantages of commerce ! Thus
at the same time expressing their sense, that the power to erect trading
companies, or corporations, was inherent in congress, and objecting to
it no further, than as to the grant of exclusive privileges. The secre-
tary entertains all the doubts, which prevail concerning the utility of
such companies ; but he cannot fashion to his own mind a reason to in-
duce a doubt, that there is a constitutional authority in the United
States to establish them. If such a reason were demanded, none could
be given, unless it were this — that congress cannot erect a corporation ;
which would be no better, than to say, they cannot do it because they
cannot do it. First, presuming an inability Avithout reason, and then as-
signing that inability, as the cause of itself Illustrations of this kind
might be multiplied without end. They will, however, be pursued no
further.
"There is a sort of evidence on this point, arising from an aggregate
view of the constitution, which is of no inconsiderable weight. The
very general power of laying and collecting taxes, and appropriating
their proceeds; that of borrowing money indefinitely ; that of coining
money and regulating foreign coins ; that of making all needful rules
and regulations respecting the property of the United States ; — these
powers combined, as well as the reason and nature of the thing, speak
strongly this language ; that it is the manifest design and scope of the
constitution to vest in congress all the powers requisite to the effectual
' administration of the finances of the United States. As far as concerns
this object, there appears to be no parsimony of power. To suppose,
then, that the government is precluded from the employment of so usual,
and so important an instrument for the aihninistration of its finances, as
that of a bank, is to suppose, what does not coincide with the general
tenour and complexion of the constitution, and what is not agreeable to
impressions, that any mere spectator would entertain concerning it.
Little less, than a prohibitory clause, can destroy the strong presump-
tions, which result from the general aspect of the government. Nothing
but demonstration should exclude tlie idea, that the power exists.
VOL. III. 19
146 COiNSTnUTION OF THE IJ. STATES. [bOOK III.
private intentions of the framers. They adopted it
upon its own clear import, upon its own naked text.
Nothing is more common, than for a law to effect more
or less, than the intention of the persons, who framed it ;
and it must be judged of by its words and sense, and
not by any private intentions of members of the legis-
lature.^
^ 1264. In regard to the faculties of the bank, if
congress could constitutionally create it, they might
confer on it such- faculties and powers, as were fit to
make it an appropriate means for fiscal operations.
They had a right to adapt it in the best manner to its
end. No one can pretend, that its having the faculty
" In all questions of this nature, the practice of mankind ought to
have great weiglit agjiinst the theories of individuals. The fact, for in-
stance, that all tlic principal commercial nations have made use of trad-
ing corporations or companies, for the purpose of external commerce, is a
satisfactory proof, that the establishment of them is an incident to the
regulation of commerce. This other fact, that banks are an usual en-
gine in the administration of national finances, and an ordinary, and the
most effectual instrument of loans, and one, which, in this country, has
been found essential, pleads strongly against the supposition, that a gov-
ernment clothed with most of the important prerogatives of sovereignty,
in relation to its revenues, its debt, its credit, its defence, its trade, its
intercourse with foreign nations, is forbidden to make use of that instru-
ment, as an appendage to its own authority. It has been usual, as an
auxiliary test of constitutional authority, to try, whether it abridges any
pre-existing right of any state, or any individual. The proposed mea-
sure will stand the most severe examination on this point. Each state
may still erect as many banks, as it pleases ; every individual may still
carry on the banking !)usincss to any extent he pleases. Another cri-
terion may be this ; whether the institution or thing has a more direct
relation, as to its uses, to the objects of the reserved powers of the
state government, than to those of the powers delegated by the United
States ? This rule, indeed, is less precise, than the former ; but it may
still serve as some guide. Surely, a bank has more reference to the
objects intrusted to the national government, than to those left to the
care of the state governments. The common defence is decisive in this
comparison." I Hamilton's Works, 13H to 154.
1 Hamilton on Bunk, 1 Hamilton's Works, 127, 128.
CH. XXV.] POWERS OF CONGRESS HANK. 147
of holding a capital ; of lending and dealing in money ;
of issuing bank notes ; of receiving deposits ; and of
appointing suitable olFicers to manage its alfairs ; are not
highly useful and expedient, and appropriate to the
purposes of a bank. They are just such, as are usually
granted to state banks ; and just such, as give increas-
ed facilities to all its operations. To say, that the bank
might have gone on without this or that faculty, is
nothing. Who, but congress, shall say, how few, or
how many it shall have, if all are still appropriate to it,
as an instrument of government, and may make it more
convenient, and more useful in its operations ? No man
can say, that a single faculty in any national charter is
useless, or irrelevant, or strictly improper, that is con-
ducive to its end, as a national instrument. Deprive a
bank of its trade and business, and its vital principles
are destroyed. Its form may remain, but its substance
is gone. All the powers given to the bank are to give
efficacy to its functions of trade and business.^
^ 1265. As to another suggestion, that the same ob-
jects might have been accomplished through the state
banks, it is sufficient to say, that no trace can be found
in the constitution of any intention to create a depend-
ence on the states, or state institutions, for the execution
of its great powers. Its own means are adequate to its
end ; and on those means it was expected to rely for
their accomplishment. It would be utterly absurd to
make the powers of the constitution wholly dependent
on state institutions. But if state banks might be em-
ployed, as congress have a choice of means, they had a
right to choose a national bank, in preference to state
banks, for the financial operations of the governr^ient.s
1 Osborn v. Bank of United States, 9 W^lieat. R. 8G1, 862 to 865.
2 M'Culloch V. Maryland, 4 Wheat. R. 424.
148 CONSTITUTION OF THE U. STATES. [bOOK III.
Proof, that they might use one means, is no proof,
that they cannot constitutionally use another means.
§ 1266. After all, the subject has been settled re-
peatedly by every department of the government, legis-
lative, executive, and judicial. The states have acqui-
esced ; and a majority have constantly sustained the
power. If it is not now setded, it never can be. If it
is settled, it would be too much to expect a re-argu-
ment, whenever any person may choose to question it.^
1 See 4 Elliot's Debates, 216 to 229 ; JWCuUoch v. Manjland, 4 Wheat.
R. 31G; Oshorn v. Bank of United States, 9 Wheat. R. 738, 859;
1 Kent's Comm. Lect. 12, p. 233 to 239 ; Sergeant on Constitution, ch.
28, [ch. 30 ;] o Marsh. Wash. App. Note 3.
CH. XXVI.] POWERS OF CONGRESS - IIOA I)S, 6c(\ \ VJ
CHAPTER XXVI.
POWERS OF CONGRESS INTERNAL IMPROVE-
MENTS.
§ 1267. Another question, which has for a long
time agitated the public councils of the nation, is, as to
the authority of congress to make roads, canals, and
other internal improvements.
§ 126S. So far, as regards the right to appropriate
money to internal improvements generally, the subject
has already passed under review in considering the
power to lay and collect taxes. The doctrine there
contended for, which has been in a great measure
borne out by the actual practice of the government, is,
that congress may appropriate money, not only to clear
obstructions to navigable rivers ; to improve harbours ;
to build breakwaters ; to assist navigation ; to erect
forts, light-houses, and piers ; and for other purposes
allied to some of the enumerated powers ; but may also
appropriate it in aid of canals, roads, and other institu-
tions of a similar nature, existing under state authority.
The only limitations upon the power are those pre-
scribed by the terms of the constitution, that the objects
shall be for the common defence, or the general wel-
fare of the Union. The true test is, whether the object
be of a local character, and local use; or, whether it
be of general benefit to the states.^ If it be purely
1 Hamilton's Report on Manufactures, 1701, 1 Hamilton's Works,
231,232; I Kent's Comm. Lect. 12, p. 250, 251, (2 ed. p. 267, 208;)
Sergeant on Constitution, ch. 28, [ch. 30 ;] President Monroe's Expo-
sition and Message, 4th May, 1822, p. 38, 3a
150 CONSTITUTION OF THE U. STATES. [bOOK III.
local, congress cannot constitutionally appropriate money
for the object. But, if the benefit be general, it mat-
ters not, whether in point of locality it be in one state,
or several ; whether it be of large, or of small extent ; its
nature and character determine the right, and congress
may appropriate money in aid of it ; for it is then in a
just sense for the general welfare.
§ 1269. But it has been contended, that the consti-
tution is not confined to mere appropriations of money ;
but authorizes congress directly to undertake and carry
on a system of internal improvements for ihe general
welfare ; whenever such improvements fall within the
scope of any of the enumerated powers. Congress
may not, indeed, engage in such undertakings merely
because they are internal improvements for the general
welfare, unless they fall within the scope of the enume-
rated powers. The distinction between this power, and
the power of appropriation is, that in the latter, congress
may appropriate to any purpose, which is for the com-
mon defence or general welfare ; but in the former, they
can engage in such undertakings only, as are means, or
incidents to its enumerated powers. Congress may,
therefore, authorize the making of a canal^ as incident
to the power to regulate commerce, where such canal
may facilitate the intercourse between state and state.
They may authorize hght-houses, piers, buoys, and
beacons to be built for the purposes of navigation.
They may authorize the purchase and building of cus-
tom-houses, and revenue cutters, and public ware-
houses, as incidents to the power to lay and collect
taxes. They may purchase places for public uses ;
and erect forts, arsenals, dock-yards, navy-yards, and
magazines, as incidents to the power to make war.
CH. XXVI.] POWERS OF CONGRESS - ROADS, 6cC. 151
§ 1270. For the same reason congress may author-
ize the laying out and making of a military road, and
acquire a right over the soil ibr such purposes ; and as
incident thereto they have a power to keep the road in
repair, and prevent all obstructions thereto. But in these,
and the like cases, the general jurisdiction of the
state over the soil, subject only to the rights of the
United States, is not excluded. As, for example, in
case of a miUtary road ; although a state cannot pre-
vent repairs on the part of the United States, or au-
thorize any obstructions of the road, its general juris-
diction remains untouched. It may punish all crimes
committed on the road ; and it retains in other respects
its territorial sovereignty over it. The right of soil may
still remain in the state, or in individuals, and the
right to the easement only in the national government.
There is a great distincdon between the exercise of a
power, excluding altogether state jurisdiction, and the
exercise of a power, which leaves the state jurisdiction
generally in force, and yet includes, on the part of the
national government, a power to preserve, what it has
created.^
^ 1271. In all these, and other cases, in which the
power of congress is asserted, it is so upon the general
ground of its being an incidental power ; and the course
of reasoning, by which it is supported, is precisely the
same, as that adopted in relation to other cases already
considered. It is, for instance, admitted, that congress
cannot authorize the making of a canal, except for some
purpose of commerce among the states, or for some
1 See 1 Kent's Comm. Lect. 12, p. 250, 251 ; Sergeant on Constitu-
tion, ch. 28, [ch. 30, ed. 1830;] 2 U. S. Law Journal, April, 182G, p. 251,
&c. ; 3 Elliot's Debates, 309, 310 ; 4 Elliot's Debates, 244, 2G5, 279,
291, 356 ; Webster's Speeches, p. 392 to 397.
152 CONSTITUTION OF THE U. STATES. [bOOK III.
other purpose belonging to the Union ; and it can-
not make a military road, unless it be necessary and
proper for purposes of war. To go over the reasoning
at large would, therefore, be litde more, than a repeti-
tion of what has been already fully expounded.^ The
Journal of the Convention is not supposed to furnish
any additional lights on the subject, beyond what have
been already stated.^
^ 1272. The resistance to this extended reach of
the national powers turns also upon the same general
reasoning, by which a strict construction of the consti-
tution has been constantly maintained. It is said,
that such a power is not among those enumerated
in the consdtution ; nor is it imphed, as a means of
executing any of them. The power to regulate com-
merce cannot include a power to construct roads and
canals, and improve the navigation of water-courses
in order to facilitate, promote, and secure such com-
merce, without a latitude of construction departing
from the ordinary import of the terms, and incompatible
with the nature of the constitution.^ The liberal inter-
1 See M'CuUoch v. J]anjland, 4 Wheat. R. 40G, 407, 413 to 421 ; Web-
ster's Speeches, p. 392 to 397 ; 4 Elliot's Debates, 280.
2 Journal of Convention, p. 2G0, 376.
3 President Madison's Message, 3d March, 1817 ; 4 Elliot's Debates,
280, 281 ; President Monroe's Message, 4th May, 1822, p. 22 to 35 ;
President Jackson's Message, 27th May, 1830 ; 4 Elliot's Debates, 333,
334, 33.5 ; 1 Kent's Comm. Lect. 12, p. 250, 251 ; 4 Elliot's Debates,
291, 292, 354, 355 ; Sergeant on Constitution, ch. 28, [ch. 30 ;] 4 Jeffer-
son's Corresp. 421. — President Monroe, in his elaborate Exposition ac-
companying his Message of the 4th of May, 1822, denies the indepen-
dent right of congress to construct roads and canals ; but asserts in the
strongest manner their right to appropriate money to such objects. His
reasoning for the latter is thought by many to be quite irresistible in
favour of the former. See the message from page 35 to page 47. One
short passage maybe quoted. "Good roads and canals will promote
many very important national purposes. 1'hey will facilitate the opera-
CH. XXVI.] POWERS OF CONGRESS PRIORITY. 153
pretation has been very uniformly asserted by congress;
the strict interpretation has not unifonnly, Ijut has upon
several important occasions been insisted upon by the
executive.* In the present state of the controversy,
the duty of forbearance seems inculcated upon the com-
mentator ; and the reader must decide for himself upon
his own views of the subject.
§ 1273. Another question has been made, how far
congress could make a law giving to the United States
a preference and priority of payment of their debts, in
cases of the death, or insolvency, or bankruptcy of their
debtors, out of their estates. It has been setded, upon
deliberate argument, that congress possess such a
constitutional power. It is a necessary and proper
power to carry into effect the other powers of the gov-
ernment. The government is to pay the debts of the
Union; and must be authorized to use the means,
which appear to itself most eligible to effect that object.
It may purchase, and remit bills for this object ; and it
may take all those precautions, and make all those
re2:ulations, which will render the transmission safe.
It may, in like manner, pass all laws to render effectual
the collection of its debts. It is no objection to this
right of priority, that it will interfere with the rights of
the state sovereignties respecting the dignity of debts,
and will defeat the measures, which they have a right
tions of war; the movements of troops ; the transportation of cannon, of
provisions and every warlike store, much to our advantage, and the dis-
advantage of the enemy in time of war. Good roads will facilitate the
transportation of tlie mail, and thereby promote the purposes of com-
merce and political intelligence among the people. They will, by being
properly directed to these objects, enhance the value of our vacant
lands, a treasure of vast resource to the nation." This is the very rea-
soning, by which the friends of tlie general power support its constitu-
tionality.
1 4 Jefferson's Corresp. 4^21 ; 1 Kent's Comm. Lect. 1% p. 25 J, 251.
VOL. III. 20
154 CONSTITUTION OF THE U. STATES. [bOOK III.
to adopt to secure themselves against delinquencies on
the part of their own revenue or other officers. This
objection, if of any avail, is an objection to the powers
given by the constitution. The mischief suggested, so
far as it can really happen, is the necessary consequence
of the supremacy of the laws of the United States on
all subjects, to which the legislative power of congress
extends.^
§ 1274. It is under the same imphed authority, that
the United States have any right even to sue in their
own courts ; for an express power is no where given
in the constitution, though it is clearly implied in that
part respecting the judicial power. And congress may
not only authorize suits to be brought in the name of
the United States, but in the name of any artificial per-
son, (such as the Postmaster-General,^) or natural
person for their benefit.^ Indeed, all the usual inci-
dents appertaining to a personal sovereign, in relation to
contracts, and suing, and enforcing rights, so far as they
are within the scope of the powers of the government,
belong to the United States, as they do to other sove-
reigns.^ The right of making contracts and instituting
suits is an incident to the general right of sovereignty ;
and the United States, being a body politic, may, within
the sphere of the constitutional powers confided to it,
and through the instrumentality of the proper depart-
ment, to which those powers are confided, enter into
1 United States v. Fisher, 2 Cranch, 358 ; 1 Teters's Condensed Rep.
421 ; Harrison v. Slerri;, 5 Cranch, 289 ; 2 Peters's Condensed Rep. 2G0 ;
1 Kent's Comm. Lect. 12, p. 229 to 233.
2 Postmaster- General \. Early, 12 Wheat. R. 136.
3 See Duganv. United States, ^^ Whcixi. R. 173, 179; United Staff s
V. Buford, 3 Peters's R. 12, 30 ; United States v. Tingeij, 5 Peters's R.
115, 127, 128.
•1 Cox V. United States, 6 Peters's R. 172.
CH. XXVI.] POWERS OF CONGRESS OATHS, &cC. 155
contracts not prohibited by law, and appropriate to tin;
just exercise of those powers ; and enibrce the obser-
vance of them by suits and judicial process.^
§ 1275. There are almost innumerable casc.-s, in
which the auxiliary and implied powers bel()n,u;in<^- to
congress have been put into operation. But the ob-
ject of these Commentaries is, rather to take notice of
those, which have been the subject of animadversion,
than of those, which have hitherto escaped reproof, or
have been silently approved.
^ 1276. Upon the ground of a strict interpretation,
some extraordinary objections have been taken in the
course of the practical operations of the government.
The very first act, passed under the government, which
regulated the time, form, and manner, of administering
the oaths prescribed by the constitution,^ was denied
to be constitutional. But the objecuon has long since
been abandoned.^ It has been doubted, whether it
is constitutional to permit the secretaries to draft bills
on subjects connected with their departments, to be
presented to the house of representatives for their con-
sideration.^ It has been doubted, whether an act au-
thorizing the president to lay, regulate, and revoke,
embargoes was constitutional.^ It has been doubted,
whether congress have authority to establish a military
academy.^ But these objections have been silently, or
practically abandoned.
1 United States v. TingeT/, 5 Peters's R. 115, 128.
2 Actof 1st June, 1789, ch. 1.
5 4 Elliot's Deb. 139, 140, 141 ; 1 Lloyd's Deb. 218 to 225.
4 4 Elliot's Debates, 238, 239, 240.
5 4 Elliot's Debates, 240. See Id. 2G5.
6 4 Jefferson's Corre?p. 499.
156 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XXVII.
i
POWERS OF CONGRESS PURCHASES OF FOREIGN
TERRITORY EMBARGOES.
^ 1277. But the most remarkable powers, which
have been exercised by the government, as auxiliary
and implied powers, and which, if any, go to the utmost
verge of liberal construction, are the laying of an un-
limited embargo in 1807, and the purchase of Louisiana
in 1803, and its subsequent admission into the Union,
as a state. These measures were brought forward, and
supported, and carried, by the known and avowed
friends of a strict construction of the constitudon ; and
they were justified at the time, and can be now justifi-
ed, only upon the doctrines of those, who support a
liberal construcdon of the constitution. The subject
has been already hinted at ; but it deserves a more
deliberate review.
^ 1278. In regard to the acquisition of Louisiana : —
The treaty of 1803 contains a cession of the whole of
that vast territory by France to the United States, for
a sum exceeding eleven millions of dollars. There is
a stipulation in the treaty on the part of the United
States, that the inhabitants of the ceded territory shall
be incorporated into the Union, and admitted, as soon
as possible, according to the principles of the federal
constitution, to the enjoyment of all the rights, advan-
tages, and immunities of citizens of the United States.^
^ 1279. It is obvious, that the treaty embraced sev-
eral very important questions, each of them upon the
1 Art. 3.
CH. XXVII.] POWERS OF CONGRESS LOUISIANA. 157
grounds of a strict construction full of diflicully and
delicacy. In the first place, had the United States a
constitutional authority to accept the cession and pay
for it ? In the next place, if they had, was the stipula-
tion for the admission of the inhabitants into the Union,
as a state, constitutional, or within the power of congress
to give it effect ?
§ 1280. There is no pretence, that the purchase, or
cession of any foreign territory is within any of the
powers expressly enumerated in the consdtution. It
is no where in that instrument said, that congress, or
any other department of the national government, shall
have a right to purchase, or accept of any cession of
foreign territory. The power itself (it has been said)
could scarcely have been in the contemplation of the
framers of it. It is, in its own nature, as dangerous to
liberty, as susceptible of abuse in its actual application,
and as likely as any, which could be imagined, to lead
to a dissolution of the Union. If congress have the
power, it may unite any foreign territory whatsoever to
our own, however distant, however populous, and how-
ever powerful. Under the form of a cession, we may
become united to a more powerful neighbour or rival ;
and be involved in European, or other foreign interests,
and contests, to an interminable extent. And if there
may be a stipulation for the admission of foreign states
into the Union, the whole balance of the constitution
may be destroyed, and the old states sunk into utter
insignificance. It is incredible, that it should have
been contemplated, that any such overwhelmino-
authority should be confided to the national oqv-
ernment with the consent of the people of the old
states. If it exists at all, it is unforeseen, and the result
of a sovereignty, intended to be hmited, and yet not
158 COXSTITUTIOX OF THE U. STATES. [bOOK III.
sufficiently guarded. The very case of the cession of
Louisiana is a striking illustration of the doctrine. It
admits, by consequence, into the Union an immense
territory, equal to, if not greater, than that of all the
United States under the peace of 1783. In the nat-
ural progress of events, it must, within a short period,
change the whole balance of power in the Union, and
transfer to the West all the important attributes of the
sovereignty of the whole. If, as is well known, one
of the strong objections urged against the constitution
was, that the original territory of the United States was
too large for a national government ; it is inconceivable,
that it could have been within the intention of the peo-
ple, that any additions of foreign territory should be
made, which should thus double every danger from this
source. The treaty-making power must be construed, as
confined to objects within the scope of the constitution.
And, although congress have authority to admit new
states into the firm, yet it is demonstrable, that this clause
had sole reference to the territory then belonging to the
United States ; and was designed for the admission of
the states, which, under the ordinance of 1787, were
contemplated to be formed within its old boundaries. In
regard to the appropriation of money for the purposes
of the cession the case is still stronger. If no appro-
priation of money can be made, except for cases within
the enumerated powers, (and this clearly is not one,)
how can the enormous sum of eleven millions be justifi-
ed for this object 1 If it be said, that it will be " for
the common defence, and general welfare '^ to purchase
the territory, how is this reconcileable with the strict
construction of the constitution 1 If congress can ap-
propriate money for one object, because it is deemed
for the common defence and general welfare, why may
CH. XXVII.] POWERS OF CONGRESS LOUISIANA. 159
they not appropriate it for all objects of the same sort?
If the territory can be purchased, it must be governed ;
and a territorial government must be created. But
where can congress find authority in the constitution
to erect a territorial government, since it does not
possess the power to erect corporations ?
§ 1281. Such were the objections, which have been,
and in fact may^be, urged against the cession, and
the appropriations made to carry the treaty into effect.
The friends of the measure were driven to the adoption
of the doctrine, that the right to acquire territory was
incident to national sovereignty ; that it was a result-
ing power, growing necessarily out of the aggregate
powers confided by the federal constitution ; that the
appropriation might justly be vindicated upon this
ground, and also upon the ground, that it was for the
common defence and general welfare. In short, there is
no possibihty of defending the constitutionality of this
measure, but upon the principles of the hberal construc-
tion, which has been, upon other occasions, so earnestly
resisted.^
1 See the Debates in 1803, on tlie Louisiana Treaty, printed by T. &,
G. Palmer in Philadelphia, in 1804, and 4 Elliot's Debates 257 to 260.
The objections were not taken merely by persons, who were at that
time in opposition to the national administration. President Jefferson
himself (under whose auspices ihe treaty was made,) was of opinion,
that the measure was unconstitutional, and required an amendment of
the constitution to justify it. He accordingly urged his friends strenu-
ously to that course ; at the same time he added, " that it will be de-
sirable for congress to do what is necessary in 5?7c/7ce"; "whatever
congress shall think necessary to do should be done with as littlf debate
as possible, and parlicularli/ so far as respects the constitutional dijlcultu.^^
" I confess, then, I think it important in the present case, to set an exam-
ple against broad construction by appealing for new power to the people.
If, however, our friends shall think differently, certainly I shall acqui-
esce with satisfaction ; confiding, that the good sense of our country
will correct the evil of construction, when it shall produce ill effects."
What a latitude of interpretation is this ! The constitution may be over-
160 CONSTITUTION OF THE IT. STATES. [bOOK III.
§ 1282. As an incidental power, the constitutional
right of the United States to acquire territory would
seem so naturally to (low from the sovereignty confid-
ed to it, as not to admit of very serious question. The
constitution confers on the government of the Union
the power of making war, and of making treaties ; and
it seems consequently to possess the power of acquir-
ing territory either by conquest or treaty.^ If the ces-
sion be by treaty, the terms of that treaty must be
obligatory ; for it is the law of the land. And if it stipu-
lates for the enjoyment by the inhabitants of the rights,
privileges, and immunities of citizens of the United
States, and for the admission of the territory into the
Union, as a state, these stipuladons must be equally
obligatory. They are within the scope of the constitu-
tional authority of the government, which has the right
to acquire territory, to make treaties, and to admit new
states into the Union.^
§ 1283. The mere recent acquisition of Florida,
W'hich has been universally approved, or acquiesced in
by all the states, can be maintained only on the same
leaped, and a broad construction adopted for favourite measures, and re-
sistance is to he made to such a construction only, when it shall produce
ill effects ! His letter to Dr. Sibley (in June, 1803) recently pul)lished is
decisive, that he thought an amendment of the constitution necessary.
Yet he did not hesitate without such amendment to give effect to every
measure to carry the treaty into effect during liis administration. See
4 Jefferson's Corresp. p. 1,2,3, Letter to Dr. Sibley, and Mr. J. Q,.
Adams's Letter to Mr. Speaker Stevenson, July 11, 1832.
1 Amer. Insur. Co. v. Canter, 1 Peters's Sup. R. 511, 542 ; Id. 517,
note, Mr. Justice Johnson's Opinion.
2 Ibid. — In the celebrated Hertford Covention, in January, 1815, a
proposition was made to amend the constitution so, as to prohibit the
admission of new states into the Union without the consent of two-
thirds of both houses of congress. In the accompanying report there is
a strong though indirect denial of the power to admit new states ivilh-
out the oriiTinal limits of the United States.
CH. XXVII.] POWERS OF CONGRESS-EIMiiAUaOES. IGl
principles ; and furnishes a striking illustration of the
truth, that constitutions of government require a liberal
construction to effect their objects, and that a narrow
interpretation of their powers, however it may suit the
views of speculative philosophers, or the accidental in-
terests of political parties, is incompatible with the per-
manent interests of the state, and subversive of the
great ends of all government, the safety and independ-
ence of the people.
§ 1284. The other instance of an extraordinary ap-
plication of the implied powers of the government,
above alluded to, is the embargo laid in the year 1807,
by the special recommendation of President Jefferson.
It was avowedly recommended, as a measure of safety
for our vessels, our seamen, and our merchandise from
the then threatening dangers from the belligerents of
Europe ; ^ and it was expHcitly stated " to be a meas-
ure of precaution called for by the occasion ; " and
" neither hostile in its character, nor as justifying, or
inciting, or leading to hostility with any nation what-
ever." ^ It was in no sense, then, a war measure. If
it could be classed at all, as ffowing from, or as an in-
cident to, any of the enumerated powers, it was that of
regulating commerce. In its terms, the act provided,
that an embargo be, and hereby is, laid on all ships and
vessels in the ports, or within the hmits or jurisdiction,
of the United States, &c. bound to any foreign port or
place.^ It was in its terms unlimited in duration ; and
could be removed only by a subsequent act of congress,
1 6 Wait's State Papers, 57.
2 7 Wait's State Papers, 25, Mr. Madison's Letter to Mr. Pinkney
Gibbons v. Ogden, 9 Wheat. R. 191, 192, 193.
3 Act, 22d December, 1807, ch. 5.
VOL. III. 21
162 COXSTITUTIOX OF THE U. STATES. [bOOK IIT,
havins: the assent of all the constitutional branches of
o
the legislature.^
§ 1285. No one can reasonably doubt, that the lay-
ing of an embargo, suspending commerce for a limited
period, is within the scope of the constitution. But the
question of difficulty was, whether congress, under the
power to regulate commerce with foreign nations,
could constitutionally suspend and interdict it wholly
for an unUmited period, that is, by a permanent act,
having no limitation as to duration, either of the act, or
of the embargo. It was most seriously controverted,
and its constitutionality denied in the Eastern states of
the Union, during its existence. An appeal wasj^made
to the judiciary upon the question ; and it having been
settled to be constitutional by that department of the
government, the decision was acquiesced in, though the
measure bore with almost unexampled severity, upon
the Eastern states ; and its ruinous effects can still be
traced along their extensive seaboard. The argument
was, that the power to regulate did not include the
power to annihilate commerce, by interdicting it per-
manently and entirely with foreign nations. The de-
cision was, that the power of congress was sovereign,
relative to commercial intercourse, qualified by the limi-
tations and restrictions contained in the constitution it-
self. Non-intercourse and Embargo laws are within
the range of legislative discretion; and if congress
have the power, for purposes of safety, of preperation,
or counteraction, to suspend commercial intercourse
with foreign nations, they are not limited, as to the du-
1 In point of fact, it remained in force until the 28th of June, 1809,
being repealed by an act passed on the first of March, 1809. to take
effect at the end of the next session of congTess, which terminated on
the 28th of June, 1809.
Cir. XXVII.] POWERS OF CONGRESS -KMiJAllCIOK.S. 103
ration, any more, than as to the manner and extent of
the measure.^
§ 1286. That this measure went to the utmost verge
of constitutional power, and especially of implied
power, has never l)een denied. That it could not be
justified by any, but the most liberal construction of the
constitution, is equally undeniable. It was the favourite
measure of those, who were generally the advocates of
the strictest construction. It was sustained by the
people from a belief, that it was promotive of the in-
terests, and important to the safety of the Union.
§ 1287. At the present day, few statesmen are to be
found, w ho seriously contest the constitutionality of the
acts respecting either the embargo, or the purchase and
admission of Louisiana into the Union. The general
voice of the nation has sustained, and supported them.
Why, then, should not that general voice be equally res-
pected in relation to other measures of vast public im-
portance, and by many deemed of still more vital interest
to the country, such as the tariff laws, and the national
bank charter? Can any measures furnish a more in-
structive lesson, or a more salutary admonition, in the
whole history of parties, at once to moderate our zeal,
and awaken our vigilance, than those, which stand upon
principles repudiated at one time upon constitutional
scruples, and solemnly adopted at another time, to sub-
serve a present good, or foster the particular pohcy of
an administration? While the principles of the con-
sdtution should be preserved with a most guarded cau-
tion, and a most sacred regard to the rights of the
1 United Slates v. The Brig William, 2 Hall's Law Journal, 255 ; 1
Kent's Comm. Lect. 19, p. 405 ; Sergeant on Const. Law, ch. 28, (ch. 30 :)
Gibbons v. Ogdeii, 9 WJicat. R. 1, 191 to 193.
164 CONSTITUTION OF THE U. STATES. [bOOK III.
states ; it is at once the dictate of wisdom, and enlight-
ened patriotism to avoid that narrowness of interpre-
tation, which would dry up all its vital powers, or com-
pel the government (as was done under the confedera-
tion,) to break down all constitutional barriers, and
trust for its vindication to the people, upon the dange-
rous political maxim, that the safety of the people is
the supreme law, (saluspopuU suprema lex ;) a maxim,
which might be used to justify the appointment of a
dictator, or any other usurpation.^
^ 1288. There remain one or two other measures
of a poUtical nature, whose constitutionality has been
denied ; but which, being of a transient character, have
left no permanent traces in the constitutional jurispru-
dence of the country. Reference is here made to the
Alien and Sedition laws, passed in 1798, both of which
were Hmited to a short duration, and expired by their
own limitation.^ One (the Alien act) authorized the
president to order out of the country such ahens, as
he should deem dangerous to the peace and safety of
the United States ; or should have reasonable grounds
to suspect to be concerned in any treasonable, or secret
1 Mr. Jefferson, on many occasions, was not slow to propose, or justify
measures of a very strong character ; and such as proceeded altogether
upon the ground of implied powers. Thus, in writing to Mr. Crawford,
on 20th of June, 1816, he deliberately proposed, with a view to enable
us in future to meet any war, to adopt "the report of the then secretary
of the war department, for placing the force of the nation at effectual
cornmand,''^ and to " ensure resources for money by the suppression of
all paper circulation during peace, and licensing that of the nation
alone during war."" 4 Jefferson's Corresp. 285. Whence are these vast
powers derived? The latter would amount to a direct prohibition of the
circulation of any bank notes of the state banks ; and in fact would
amount to a suppression of the most effective powers of the state banks.
2 Act of2.5th of June, 1798, ch. 75; Act of 14th of July, 1798, ch.91 ;
1 Tuck. Black. Coram. App. part 2, note G, p. 11 to 30.
CH. XXVII.] POWERS OF CONGUESS-ALIEN ACT. 1 G5
machinations against the government of the United
States, under severe penaUies for disobedience. The
other declared it a public crime, punishable with fine
and imprisonment, for any persons unlawfully to com-
bine, and conspire together, with intent to oppose any
measure or measures of the United States, &c.; or
with such intent, to counsel, advise, or attempt to pro-
cure any insurrection, unlawful assembly, or combina-
tion ; or to write, print, utter, or publish, or cause, or
procure to be written, &c., or willingly to assist in
writing, &c., any false, scandalous, and malicious writ-
ing or writings against the government of the United
States, or either house of congress, or the president,
with intent to defame them, or to bring them into con-
tempt, or disrepute, or to excite against them the hatred
of the people, or to stir up sedition; or to excite any un-
lawful combination for opposing, or resisting any law,
or any lawful act of the president, or to resist, oppose,
or defeat any such law or act ; or to aid, encourage, or
abet any hostile designs of any foreign nations against
the United States. It provided, however, that the truth
of the writing or libel might be given in evidence ; and
that the jury, who tried the cause, should have a right
to determine the law and the fact, under the direction'
ot the court, as in other cases.
§ 1289, The constitutionality of both the acts was
assailed with great earnestness and ability at the time ;
and was defended with equal masculine vigour. The
ground of the advocates, in favour of these laws, was
that they resulted from the right and duty in the «ov-
ernment of self-preservation, and the like duty and
protection of its functionaries in the proper discharo-e
of their official duties. They were impugned, as not
conformable to the letter or spirit of the constitution ;
166 CONSTITUTIO:^ OF THE U. STATES. [bOOK III.
and as inconsistent in their principles with the rights of
citizens, and the liberty of the press. The Alien act
was denounced, as exercising a power not delegated
by the constitution ; as uniting legislative and judicial
functions, with that of the executive ; and by this Union
as subverting the general principles of free govern-
ment, and the particular organization and positive pro-
visions of the constitution. It was added, that the Se-
dition act was open to the same objection, and was ex-
pressly forbidden by one of the amendments of the
constitution, on which there will be occasion hereafter
to comment.^ At present it does not seem necessary
to present more than this general oudine, as the mea-
sures are not likely to be renewed ; and as the doctrines,
on which they are maintained, and denounced, are not
materially different from those, which have been already
considered.^
1 The Alien, and Sedition Acts were the immediate cause of the
Virginia Resolutions of December, 1798, and of the elaborate vindica-
tion of them, in the celebrated Report of tlie 7th of January, 1800. The
learned reader will there find an ample exposition of the whole consti-
tutional objections. See also 4 Jefferson's Correspondence, 23, 27. The
reasoning on the other side may be found in the Debates in Congress,
at the time of the passage of these acts. It is greatly to be lamented,
that there is no authentic collection of all the Debates in congress, in a
form, like that of the Parliamentary Debates. See also 4 Elliot's Deb.
251, 252; Debates on the Judiciary, in 1802, Mr. bayard's Speech,
p. 371, 372; Addison's Charges to the Grand Jury, No. 25, p. 270; Id.
No. 26 p. 280. These charges are commonly bound with Addison's
Reports. See also 1 Tuck. Black. Comm. 296 to 300; Id. Part 2, App.
note 6, p. 11 to 36 ; Report of Coinmittee of House of Representatives
of congress, 25th February, 1799, and Resolve of Kentucky, of 1798, and
Resolve of Massachusetts, of 9th and 13th of February, 1799, on the same
subject.
2 Mr. Vice President Calhoun, in his letter of the 28th of August,
J832, to Gov. Hamilton, uses the following language. " From the adop-
tion of the constitution we have had but one continued agitation of con;
stitutional questions, embracing some of the most important powers ex-
ercised by the government ; and yet, in spite of all the ability, and force
CH. XXVII.] POWERS OF CONGRESS- ALIEN ACT. 167
of argument, displayed in the various discussions, backed by tlie liifrh
authority, claimed for the Supreme Court to adjust such controversies,
not a single constitutional question of a political character, which has
ever been agitated during this long period, has been settled in the i)ub-
lic opinion, except that of the iniconstiiutronalUy of the Mitn^and Sedih'on
laws ; and what is remarkable, that was settled agmiist the decision of the
Supreme Court:' Now, in the first place, the constitutionality of the
Alien, and Sedition laws never came before the Supreme Court for de-
cision ; and consequently, never was decided by that court. In the next
place, what is meant by jawi/tc opinion deciding constitutional questions?
What public opinion ? Where, and at what time delivered ? It is no-
torious, that some of the ablest statesmen and jurists of America, at
the time of the passage of these acts, and ever since, have maintained
the constitutionality of these laws. They were upheld, as constitution-
al, by some of the most intelligent, and able state legislatures in the
Union, in deliberate resolutions affirming their constitutionality. Nay
more, it may be affirmed, that at the time, when the controversy engaged
the public mind most earnestly upon the subject, there was, (to say the
least of it) as great a weight of judicial, and professional talent, learn-
ing, and patriotism, enlisted in their favour, as there ever has been
against them. If, by being settled by public opinion, is meant that all
the people of America were united in one opinion on the subject, the cor-
rectness of the statement cannot be admitted; though its sincerity will
not be questioned. It is one thing to believe a doctrine universally ad-
mitted, because we ourselves think it clear; and quite another thing to
establish the fact. The Sedition and Alien laws were generally
deeme-d inexpedient, and therefore any allusion to them now rarely oc-
curs, except in political discussions, when they are introduced to add
odium to the party, by Avhich they were adopted. But the most serious
doubts may be entertained, whether even in the present day, a majority
, of constitutional lawyers, or of judicial opinions, deliberately hold them
to be unconstitutional.
If public opinion is to decide constitutional questions, instead of the
public functionaries of the government in their deliberate discussions
and judgments, (a course quite novel in the annals of jurisprudence,) it
would be desirable to have some mode of ascertaining it in a satisfacto-
ry, and conclusive form ; and some uniform test of it, independent of
mere private conjectures. No such mode has, as yet, been provided
in the constitution. And, perhaps, it will be found upon due inquiry,
that different opinions prevail at the same time on the same subject, in
the North, the South, the East, and the West. If the judgments of the
Supreme Court (as it is more than hinted) have not, even upon the most
deWhernte juridical arguments, been satisfactory, can it be expected that
popular arguments will be more so ? It is said, that not a single consti-
tutional question, except that of the Alien and Sedition laws, has ever
been settled. If by this no more is meant, than that all minds have not
168 CONSTITUTION OP THE U. STATES. [bOOK III.
acquiesced in the decisions, the statement must be admitted to be cor-
rect And such must, under such a postulate, be for ever the case with
all constitutional questions. It is utterly hopeless in any way to satisfy
all minds upon such a subject. But if it be meant, that these decisions
have not been approved, or acquiesced in, by a majority of the Union, as
correct expositions of the constitution, that is a statement, which remains
to be proved : and is certainly not to be taken for granted. In truth, it
is obvious, that so long as statesmen deny, that any decision of the Su-
preme Court is conclusive upon the interpretation of the constitution, it
is wholly impossible, that any constitutional question should ever, in their
view, be settled. It may always be controverted ; and if so, it will always
be controverted by some persons. Human nature never yet presented
the extraordinary spectacle of all minds, agreeing in all things ; nay not
in all truths, moral, political, civd, or religious. Will the case be better,
when twenty-four different states are to settle such questions, as they
may please, from day to day, or year to year ; holding one opinion at one
time, and another at another? If constitutional questions are never to
be deemed settled, while any persons shall be found to avow a doubt, what
is to become of any government, national or state ? Did any statesmen
ever conceive the project of a constitution of government for a nation
or state, every one of whose powders and operations should be liable to be
suspended at the will of any one, who should doubt their constitution-
ality? Is a constitution of government made only, as a text, about which,
casuistry and ingenuity may frame endless doubts, and endless questions ?
Oris it made, as a fixed system to guide, to cheer, to support, and to pro-
tect the people ? Is there any gain to rational liberty, by perpetuating
doctrines, which leave obedience an affair of mere choice or speculation,
now and for ever ?
CH. XXVni.] I^OWERS OF CONGRESS -TREASON. \C)\)
CHAPTER XXVIII.
POWER OF CONGRESS TO PUNISH TREASON.
^ 1290. And liere, in llic ordc^r of tlic conslilution,
terminates the section, which enumerates (lie })owers
of congress. There are, however, other chxuses de-
tached h'om tlieir proper connexion, wliicli embrace
other powers delegated to congress ; and which for no
apparent reason have been so detached. As it will be
more convenient to bring the whole in review at once,
it is proposed (though it is a deviation from the g(uieral
method of tliis woi'k) to submit them in this place to the
consideration of the reader.
^ 1291. The third section of the fouitli article gives
a constitutional defmition of the crime of treason, (which
will be reserved for a separate examination,) and then
provides : " The congress shall have power to declare
"the punishment of treason ; but no attainder of trea-
" son shall w^ork corruption of blood, or forfeiture, ex-
"cept during the hfe of the person attainted."
§ 1292. The propriety of investing the national gov-
ernment with authority to punish the crime of treason
against the United States could never become a ques-
tion with any persons, who deemed the national govern-
ment worthy of creation, or preservation. If the power
had not been expressly granted, it must have been im-
plied, unless all the powers of the national government
might be put at defrance, and prostrated with impunity.
Two motives, probably, concurred in introducing it,
as an express power. One was, not to leave it open
to implication, whether it was to be exclusively punish-
able with death according to the known rule of the
VOL. 111. 22
170 CONSTITUTION OF THE U. STATES. [bOOK III.
common law, and with the barbarous accompaniments
pointed out by it ; but to confide the punishment to the
discretion of congress. The other was, to impose some
hmitation upon the nature and extent of the punish-
ment, so that it should not work corruption of blood or
forfeiture beyond the life of the offender.
§ 1293. The punishment of high treason by the
common law, as stated by Mr. Justice Blackstone,.^ is as
follows: 1. That theoflfender be drawn to the gallows,
and not be carried or walk, though usually (by conniv-
ance at length ripened into law) a sledge or hurdle is
allowed, to preserve the offender from the extreme
torment of being dragged on the ground or pavement.
2. That he be hanged by the neck, and cut down alive.
3. That his entrails be taken out and burned, while he
is yet aUve. 4. That his head be cut off. 6, That
his body be divided into four parts. 6. That his head
and quarters be at the king's disposal. These refine-
ments in cruelty (which if now practised would be dis-
graceful to the character of the age) w^ere, in former
times, literally and studiously executed ; and indicate
at once a savage and ferocious spirit, and a degrading
subserviency to royal resentments, real or supposed.
It was wise to place the punishment solely in the dis-
cretion of congress ; and the punishment has been since
declared to be simply death by hanging ; ^ thus inflict-
ing death in a manner becoming the humanity of a
civilized society.
§ 1294. It is well known, that corruption of blood,
and forfeiture of the estate of the offender followed, as
a necessary consequence at the common law, upon
every attainder of treason. By corruption of blood all
I 4 Black. Comm. [)Z 2 Act of 30th April, J 790, cli. 36.
CH. XXVIII.] POWERS OK CONGRESS-TKEASOX. 171
inheritable qualities are destroyed; so, that an attaint-
ed person can neither inherit lands, nor other heredita-
ments from his ancestors, nor retain those, he is already
in possession of, nor transmit them to any heir. And this
destruction of all inheritable qualities is so complete, that
it obstructs all descents to his posterity, whenever they
are obliged to derive a title through him to any estate
of a remoter ancestor. So, that if a father commits
treason, and is attainted, and suffers death, and then
the grandfather dies, his grandson cannot inherit any
estate from his grandfather ; for he must claim through
his father, who could convey to him no inheritable
blood.^ Thus the innocent are made the victims of
a guilt, in which they did not, and perhaps could not,
participate ; and the sin is visited upon remote genera-
tions. In addition to this most grievous disability, the
person attainted forfeits, by the common law, all his
lands, and tenements, and rights of entry, and rights of
profits in lands or tenements, which he possesses.
And this forfeiture relates back to the time of the trea-
son committed, so as to avoid all intermediate sales
and incumbrances ; and he also forfeits all his goods
and chattels from the time of his conviction.^
^ 1295. The reason commonly assigned for these
severe punishments, beyond the mere forfeiture of the
life of the party attainted, are these : By committing
treason the party has broken his original bond of alle-
giance, and forfeited his social rights. Among these
social rights, that of transmitting property to others is
deemed one of the chief and most valuable. More-
over, such forfeitures, whereby the posterity of the
1 2 Black. Comrn. 25'2, 2r).3 ; 4 Black. Comm. 388,389.
2 4 Black. Comm. 381 to 388.
172 CONSTLTUTIOlVf OF THE U. STATES. [bOOK III.
offender must suffer, as well as himself, will help to re-
strain a man, not only by the sense of his duty, and
dread of personal punishment, but also by his passions
and natural affections ; and will interest every depend-
ent and relation, he has, to keep him from offending.^
But this view of the subject is wholly unsatisfactory.
It looks only to the offender himself, and is regardless
of his innocent posterity. It really operates, as a post-
humous punishment upon them ; and compels them to
bear, not only the disgrace naturally attendant upon
such flagitious crimes ; but takes from them the com-
mon rights and privileges enjoyed by all other citizens,
where they are wholly innocent, and however remote
they may be in the lineage from the first offender. It
surely is enough for society to take the life of the
offender, as a just punishment of his crime, without
taking from his offspring and relatives that property,
which may be the only means of saving them from pov-
erty and ruin. It is bad policy too ; for it cuts off all
the attachments, which these unfortunate victims might
otherwise feel for their own government, and prepares
them to engage in any other service, by which their
supposed injuries may be redressed, or their hereditary
hatred gratified.^ Upon these and similar grounds, it
may be presumed, that the clause was first introduced
into the original draft of the constitution ; and, after some
amendments, it was adopted without any apparent re-
sistance.^ By the laws since passed by congress, it is
declared, that no conviction or judgment, for any capital
or other offences, shall work corruption of blood, or any
1 4 Black. Comm. 382. See also Yorke on Forfeitures.
2 Sec Ravvle on Const, ch. 11, p. 145, 146.
3 Journal of Convention, 221, 269, 270, 271.
Cll. XXVIII.] POWERS OF COXC R i:SS-TRKASO.\. 173
forfeiture of estate.-^ The history of other countries
abundantly proves, that one of the strono; incentives to
prosecute offences, as treason, has been the chance of
sharing in the phuider of the victims. Rapacity has
been thus stimulated to exert itself in the service of
the most corrupt tyranny ; and tyranny has been thus
furnished with new opportunities of indulging its malig-
nity and revenge ; of gratifying its envy of the rich, and
good ; and of increasing its means to reward favourites,
and secure retainers for the worst deeds.^
§ 1296. The power of punishing the crime of trea-
son against the United States is exclusive in congress ;
and the trial of the offence belongs exclusively to the
tribunals appointed by them. A state cannot take
cognizance, or punish the offence ; whatever it may
do in relation to the offence of treason, committed ex-
clusively against itself, if indeed any case can, under
the constitution, exist, which is not at the same time
treason against the United States.^
1 Act of 1790, ch. ;](;, § 24.
2 See ITuck. Black. Comm. App. 275, 270 ; RaAvle on Const, ch. 11,
p. 143 to 145.
3 See The People w. Lynch, 1 1 Johns. R. 553 ; Rawle on Const, ch. 11,
p. 140, 142, 143 ; Id. ch.'si, p. '207 ; Sergeant on Const, ch. 30, [ch. 32.]
174 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XXIX.
POWER OF CONGRESS AS TO PROOF OF STATE
RECORDS AND PROCEEDINGS.
^ 1297. The first section of the fourth article de-
clares : " Full faith and credit shall be given in each
" state to the public acts, records, and judicial proceed-
"ings of every other state. And the congress may by
"general laws prescribe the manner, in which such
"acts, records, and proceeding shall be proved, and
" the effect thereof:'
§ 1298. The articles of confederation contained a
provision on the same subject. It was, that "full faith
and credit shall be given in each of these states to the
records, acts, and judicial proceedings of the courts
and magistrates of every other state." ^ It has been
said, that the meaning of this clause is extremely inde-
terminate ; and that it was of but little importance
under any interpretation, which it Avould bear.^ The
latter remark may admit of much question, and is cer-
tainly quite too loose and general in its texture. But
there can be no difficulty in affirming, that the authority
given to congress, under the constitution, to prescribe
the form and effect of the proof is a valuable improve-
ment, and confers additional certainty, as to the true
nature and import of the clause. The clause, as re-
ported in the first draft of the constitution, was, " that
full faith and credit shall be given in each state to the
acts of the legislature, and to the records and judicial
proceedings of the courts and magistrates of every
other state." The amendment was subsequently
> Art. 4. '^ The Federalist, No. 42.
CH. XXIX.] POWERS OF CONGRESS- KECOUDS.
i 'J
reported, substantially in the form, in which it now
stands, except that the words, in the introductory
clause, were, "Full laith and credit onir/,/ /(, 1,^. ojven,
(instead of "shall"); and, in the next clause, the %/.v-
hiturc shall, (instead of, the congress "??K//y"); and in
the concluding clause, " and the effect, which judg-
ments obtained in one state shall have in another,"
(instead of, " and the effect thereof:'') The latter was
substituted by the vote of six states against three ;
the others were adopted without opposition ; and the
Avhole clause, as thus amended, passed without any
division.^
§ 1299. It is well known, that the laws and acts of
foreign nations are not judicially taken notice of in any
other nation ; and that they must be proved, like any
other facts, whenever they come into operation or ex-
amination in any forensic controversy. The nature
and mode of the proof depend upon the municipal
law of the country, where the suit is depending ; and
there are known to be great diversities in the practice
of different nations on this subject. Even in England
and America the subject, notwithstanding the numerous
judicial decisions, which have from time to time been
made, is not without its difiiculties and embarrassments.^
1 Journal of Convention, p. 228, 305, 320, 321.
2 See Starkie on Evid. P. 2, § 92, p. 251, and note to American od.
P. 4, p. 509; Applctoii V. Braybrook, G M. & Selw. 34,; Livwijcsion v.
Maryland Insurance Company, 0 Crancli, 274 ; S. C. 2. Peters's Cond.
R. 370; Talbot v. Seenian, 1 Cranch, 1, 38; S. C. 1 Peters's Cond. R.
229; Raynham v. Canton, '.i Pick. K.293; Consecqun v. Jfillimrs, 1 Pe-
ters's Cir. R. 225, 229 ; Church v. Hubbard, 2 Cranch, 187, 238; S. C. 1
Peters's Cond. R. 385 ; Yeaton v. Fry, 5 Crancli, 335, 343 ; S. C. 2 Pe-
ters's Cond. R. 273 ; Picton's case, 24, Howell's State Trials, 494, &c. ;
Vandervoorst v. Smith, 3 Caine's R. 155 ; Delajield v. Hurd, 3 Johns. R.
310. See also Pardessus Cours de Droit. Commcr. P. G. tit 7, ch. 2, par-
tout
176 COXSTITUTION OF THE U. STATES. [bOOK III.
§ 1300. Independent of the question as to proof,
there is another question, as to the effect, which is
to be given to foreign judgments, when duly authenti-
cated, in the tribunals of other nations, either as matter
to maintain a suit, or to found a defence to a suit.
Upon this subject, also, chfferent nations are not en-
tirely agi'eed in opinion or practice. Most, if not all
of them, profess to give some effect to such judg-
ments ; but many exceptions are allowed, which either
demolish the whole efficiency of the judgment, as such,
or leave it open to collateral proofs, which in a great
measure impair its validity. To treat suitably of this
subject would require a large dissertation, and appro-
priately belongs to another branch of public lavv.^
^ 1301. The general rule of the common law, recog-
nised both in England and America, is, that foreign
judgments are prima facie evidence of the right and
matter, which they purport to decide. At least, this
may be asserted to be in England the preponderating
weight of opinion ; and in America it has been held,
upon many occasions,^ though its correctness has been
recently questioned, upon principle and authority, with
much acuteness.^
§ 1302. Before the revolution, the colonies were
deemed foreign to each other, as the British colonies
1 See authorities in preceding- note, and Walker v. jniittier, 1 Doug.
R. 1 ; Phillips V. Hunter, 2 H^ Bl. 409 ; Johnson's Dig. of New-York
Rep. Evid. V ; Starkie on Evidence, P. 2, § 07, p. 206 ; Id. § 68, p. 2J4 ;
Bissell V. Briggs, 9 Mass. R. 462 ; Bigelovv's Dig. Evid. C, Judgment, D.
E. F. 11. I. ; Hitchcock v. Aickin, 1 Caine's R. 4(10.
2 See authorities in preceding notes ; and Starkie on Evid, P. 2, § iu ;
p. 206 to 216, and Notes of American Ed. ibid. ; Plummer v. JVood-
bourne, 4 Barn. Cresw. 625.
3 Starkie on Evid. P. 2, § 67, p. 206 to 216 : Bigelow's Dig. Evid. C.
and cases cited in Kaims's Equity, B. 3, ch. 8, p. 375.
CH. XXIX.] POWERS OF CONGRESS RECORDS. 177
are still deemed foreign to the mother rountrv, :iir1, oi'
course, their judgments were deemed foreign Judg-
ments within the scope of the foregoing rule.^ It fol-
lowed, that the judgments of one colony were deemed
re-examinable in another, not only as to the jurisdiction
of the court, which pronounced them ; but also as to
the merits of the controversy, to the extent, in which
they were then understood to be re-examinable in Eng-
land. In some of the colonies, however, laws had been
passed, which put judgments in the neighbouring colo-
nies upon a like footing with domestic judgments, as to
their conclusiveness, when the court possessed juris-
dicdon.^ The reasonable construction of the article of
the confederadon on this subject is, that it was intend-
ed to give the same conclusive effect to judgments of
all the states, so as to promote uniformity, as well as
certainty, in the rule among them. It is probable, that
it did not invariably, and perhaps not generally, receive
such a construction ; and the amendment in the con-
stitution was, without question, designed to cure the
defects in the existing provision.^
§ 1302. The clause of the consdtution propounds three
disdnct objects; first, to declare, that full faith and credit
shall be given to the records, 8cc. of every other state;
secondly, to prescribe the manner of authenticadng
them ; and thirdly, to prescribe their effect, when so
1 Bissell V. Briggs, 9 Mass. R. 4G2; Commonweallhw Green, 17 Mass.
R. 515,543.
2 This was done in Massachusetts by the Provincial act of 14 Geo. 3,
ch. 2, as to judgments of the courts of the neighbouring- colonics. See
Bissell V. Brig'Ts, 9 Mass, R. 462, 4()5 ; Ancient Colony and Province
Laws, [ed. 1814,] p. ()84.
3 See Kibbe v. Kibbe, 1766, Kirby R. 110; James v. Allen, 1786, 1
Ball. R. 188; Phelps v. Hnlh-er, 1788, 1 Dall. R. 261; 3 Jour, of Cong.
12 Nov. 1777, p. 493 ; S. C. 1 Secret Journal, p. 366 ; Hitchcock v. JUckeUi
1 Caine's R. 460, 478, 479.
VOL. III. 23
178 CONSTITUTION OF THE U. STATES. [bOOK III.
authenticated. The first is declared, and established by
the constitution itself, and is to receive no aid, nor is it
susceptible of any qualification by congress. The other
two are expressly subjected to the legislative power.
^ 1303. Let us then examine, what is the true mean-
ing and interpretation of each section of the clause.
"Full faith and credit shall be given in each state to
" the public acts, records, and judicial proceedings of
"every other state." The language is positive, and
declaratory, leaving nothing to future legislation. " Full
" faith and credit shall be given ; " what, then, is
meant by full faith and credit? Does it import no
more than, that the same faith and credit are to be
given to them, which, by the comity of nations, is ordi-
narily conceded to all foreign judgments ? Or is it
intended to give them a more conclusive efficiency,
approaching to, if not identical with, that of domes-
tic judgments ; so that, if the jurisdiction of the court
be estabhshed, the judgment shall be conclusive, as
to the merits ? The latter seems to be the true object
of the clause ; and, indeed, it seems difficuk to assign
any other adequate motive for the insertion ol the
clause, both in the confederation and in the constitu-
tion. The framers of both instruments must be pre-
sumed to have known, that by the general comity of
nations, and the long established rules of the common
law, both in England and America, foreign judgments
were prima facie evidence of their own correctness.
They might be impugned for their injustice, or irregu-
larity ; but they were admitted to be a good ground of
action here, and stood firm, until impeached and over-
thrown by competent evidence, introduced by the
adverse party. It is hardly conceivable, that so much
sohcitude should have been exhibited to introduce, as
CH. XXIX.] POWERS OF COXGRESS IIKCOII
I)S.
between confederated states, much less between states
united under the same national government, a clause
merely allirmative of an established rule ol" law, and not
denied to the humblest, or most distant foreign nation.
It was hardly supposable, that the states would deal
less favourably with each other on such asul)ject, where
they could not but have a common interest, than with
foreigners. A motive of a higher kind must naturally
have directed them to the provision. It must have
been, "to form a more perfect Union," and to give to
each state a higher security and confidence in the
others, by attributing a superior sanctity and conclusive-
ness to the public acts and judicial proceedings of all.
There could be no reasonable objection to such a
course. On the other hand, there were many reasons
in its favour. The states were united in an indissoluble
bond with each other. The commercial and other in-
tercourse with each other would be constant, and infi-
nitely diversified. Credit would be every where given
and received ; and rights and property would belong to
cidzens of every state in many other states than that, in
which they resided. Under such circumstances it could
scarcely consist with the peace of society, or with the in-
terest and security of individuals, with the public or with
private good, that questions and dtles, once dehberately
tried and decided in one state, should be open to litigation
again and again, as often as either of the parties, or their
privies, should choose to remove from one jurisdiction
to another. It would occasion infinite injustice, after
such trial and decision, again to open and re-examine
all the merits of the case. It might be done at a dis-
tance from the original place of the transaction ; after
the removal or death of witnesses, or the loss of other
testimony ; after a long lapse of time, and under cir-
180 CONSTITUTION OF THE U. STATES. [bOOK III.
cumstances Avholly unfavourable to a just understand-
ing of the case.
^ 1304. If it should be said, that the judgment might
be unjust upon the merits, or erroneous in point in law,
the proper answer is, that if true, that would furnish no
ground for interference ; for the evils of a new trial would
be greater, than it would cure. Every such judgment
ought to be presumed to be correct, and founded in jus-
tice. And what security is there, that the new judg-
ment, upon the re-examination, would be more just, or
more conformable to law, than the first ? What state has
a right to proclaim, that thejudgments of its own courts
are better founded in law or in justice, than those of
any other state 7 The evils of introducing a general
system of re-examination of the judicial proceedings of
other states, whose connexions are so intimate, and
whose rights are so interwoven with our own, would
far outweigh any supposable benefits from an imagined
superior justice in a few cases.^ Motives of this sort,
founded upon an enlarged confidence, and reciprocal
duties, might well be presumed to have entered into
the minds of the framers of the confederation, and the
constitution. They intended to give, not only faith and
credit to the public acts, records, and judicial proceed-
ings of each of the states, such as belonged to those
of all foreign nations and tribunals ; but to give to
them full faith and credit ; that is, to attribute to them
positive and absolute verity, so that they cannot be
contradicted, or the truth of them be denied, any more
than in the state, where they originated.^
1 Green v. Sarmiento,] Peters's Cir. K. 74, 78 to 80 ; Hitchcock v. JUcken^
1 Caine's R. 4(52.
2 Green v. Sarmiento, 1 Peters's Cir. R. 74, 80, 81 ; Bissell v. Briggs,
9 Mass. R. 4G2, 407; Commonwealth v. Green, 17 Mass. R. 515,544,
545.
CH. XXIX.] POWERS OF CONGRESS -RECORDS. 181
§ 1305. The next section of the clause is, "And
" the congress may by general laws prescribe the man-
" ner, in which such acts, records, and proceedings
** shall be proved, — and the effect thereof.^' It is ob-
vious, that this clause, so far as it authorizes congress to
prescribe the mode of authentication, is wholly ber>ide
the purpose of the preceding. Whatever may be the
faith and credit due to the public acts, records, and pro-
ceedings of other states, whether ;)?'tma/aci6 evidence
only, or conclusive evidence ; still the mode of establish-
ing them in proof is of very great importance, and upon
which a diversity of rules exists in different countries.
The object of the present provision is to introduce
uniformity in the rules of proof, (which could alone be
done by congress.) It is certainly a great improvement
upon the parallel article of the confederation. That left
it wholly to the states themselves to require any proof of
public acts, records, and proceedings, which they might
from time to time deem advisable ; and where no rule
was prescribed, the subject was open to the decision
of the judicial tribunals, according to their own views of
the local usage and jurisprudence. Many embarrass-
ments must necessarily have grown out of such a state
of things. The provision, therefore, comes recom-
mended by every consideration of wisdom and conven-
ience, of public peace, and private security.
^ 1306. But the clause does not stop here. The
words added are, " and the effect thereof." Upon the
proper interpretation of these words some diversity of
opinion has been judicially expressed. Some learned
judges have thought, that the word "thereof" had re-
ference to the proof, or authentication ; so as to read,
" and to prescribe the effect of such proof, or authenti-
cation." Others have thought, that it referred to the
182 CONSTITUTION OF THE U. STATES. [bOOK III.
antecedent words, " acts, records, and proceedings ; "
so as to read, " and to prescribe the effect of such
acts, records, and proceedings." ^ Those, who were
of opinion, that the preceding section of the clause
made judgments in one state conclusive in all others,
naturally adopted the former opinion; for otherwise
the power to declare the effect would be wholly
senseless; or congress could possess the power to re-
peal, or vary the full faith and credit given by that sec-
tion. Those, who were of opinion, that such judgments
were not conclusive, but only prima facie evidence, as
naturally embraced the other opinion ; and supposed,
that until congress should, by law, declare what the
effect of such judgment should be, they remained only
prima facie evidence.
§ 1307. The former seems now to be considered
the sounder interpretation. But it is not, practically
speaking, of much importance, which interpretation
prevails ; since each admits the competency of con-
gress to declare the effect of judgments, when duly
authenticated ; so always, that full faith and credit are
given to them ; and congress by their legislation have
already carried into operation the objects of the clause.
The act of 26th of May, 1790, (ch. 11,) after providing
for the mode of authenticating the acts, reco^-ds, and
judicial proceedings of the states, has declared, "and
the said records and judicial proceedings, authenti-
cated as aforesaid, shall have st^cA faith and credit given
to them in every court within the United States, as
they have by law or usage in the courts of the state.
1 See Bissell v. Briggs, 9 Mass. R. 462, 467 ; Hitchcock v. Sicken, I
Caine's R. 460; Green v. Sarmiento, 1 Peters's Circt. R. 74; Field Y.
Gibbs, Id. 155 ; Commomvealth v. Green, 17 Mass. R. 515, 544, 545.
CH. XXIX.] POWERS OF CONGRESS-RECORDS. 183
from whence the said records are or shall be taken." ^
It has been settled upon solemn argument, that this
enactment does declare the effect of the records, as evi-
dence, when duly authenticated. It gives them the
same faith and credit, as they have in the state court,
from which they are taken. If in such court they have
the faith and credit of the highest nature, that is to say,
o[ record evidence, they must have the same faith and
credit in every other court. So, that congress have
declared the effect of the records, by declaring, what
degree of faith and credit shall be given to them. If
a judgment is conclusive in the state, where it is pro-
nounced, it is equally conclusive every v/here. If re-
examinable there, it is open to the same inquiries in every
other state.^ It is, therefore, put upon the same foot-
ing, as a domestic judgment. But this does not pre-
vent an inquiry into the jurisdiction of the court, in
which the original judgment was given, to pronounce
it; or the right of the state itself to exercise authority
over the persons, or the subject matter. The consti-
tution did not mean to confer a new power or jurisdic-
tion ; but simply to regulate the effect of the acknow-
ledged jurisdiction over persons and things within the
territory.^
1 By the act of 27th March, 1804, ch. 56, the provisions of the act of
1790 are enlarcfed, so as to cover some omissions, such as state office-
books, the records of territorial courts, &c.
2 M'dis V. Z)u?7yte,7 Cranch. R. 4dl ; Hampdni v. J\rConnrll,'.]\\\\Gn\..
R. 234 ; 1 Kent's Comm. Lect. 12, p. 243, 244 ; Sergeant on Const.
ch. 31, [ch. 33.]
'^ Bissell V. Brigs^s, 9 ]Mass. R. 462, 467 ; Shiimicay v. Slillman, 4 Cow-
en's R. 292 ; Borden v. Fitch, 13 Johns. R. 121.
184 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XXX.
POWERS OF CONGRESS ADMISSION OF NEW STATES,
AND ACQUISITION OF TERRITORY.
^ 1308. The third section of the fourth article con-
tains two distinct clauses. The first is — " New states
-^' may be admitted by the congress into this Union.
"But no new state shall be formed or erected within
"the jurisdiction of any other state, nor any state be
"formed by the jurisdiction of two or more states, or
"parts of states, without the consent of the legislature
" of the states concerned, as well as of the congress."
^ § 1309. A clause on this subject was introduced into
the original draft of the constitution, varying in some
respects from the present, and especially in requiring
the consent of two thirds of the members present of
both houses to the admission of any new state. After
various modifications, attempted or carried, the clause
substantially in its present form was agreed to by the
vote of eight states against three.^
^ 1310. In the articles of confederation no provision
is to be found on this important subject. Canada was
to be admitted of right, upon her acceding to the mea-
sures of the United States. But no other colony (by
which was evidently meant no other British colony)
was to be admitted, unless by the consent of nine states.^
The eventual establishment of new states within the
Umits of the Union seems to have been wholly over-
looked by the framers of that instrument.^ In the pro-
1 Journal of Convention, p. 222, 307, 308, 309, 310, 31 1, 3G5, 385.
2 Article 11. 3 The Federalist, No. 43.
CH. XXX.] POWERS OF CONGRESS-TERIUTOKIES. 185
gress of the revolution it was not only perceived, tliat
from the acknowledged extent of the territory of seve-
ral of the states, and its geographical position, it might
be expedient to divide it into two states ; but a much
more interesting question arose, to whom of right be-
longed the vacant territory appertaining to the crown
at the time of the revolution, whether to the states,
within whose chartered Umits it was situated, or to the
Union in its federative capacity. This was a subject of
long and ardent controversy, and (as has been already
suggested) threatened to disturb the peace, if not to
overthrow the government of the Union.^ It was upon
this ground, that several of the states refused to ratify
the articles of confederation, insisting upon the right of
the confederacy to a portion of the vacant and unpa-
tented territory included within their chartered limits.
Some of the states most interested in the vacant and
unpatented western territory, at length yielded to the
earnest solicitations of congress on this subject.^ To
induce them to make liberal cessions, congress declar-
ed, that the ceded territory should be disposed of for
the common benefit of the Union, and formed into re-
pubhcan states, with the same rights of sovereignty,
freedom, and independence, as the other states ; to be
of a suitable extent of territory, not less than one hun-
dred, nor more than one hundred and fifty miles square ;
and that the reasonable expenses incurred by the state,
since the commencement of the war, in subduing Brit-
1 2 Pitk. Hist. ch. 11, p. 17, 19, 24, 27, 28, 29 lo 32 ; Id. 32 to 36 ; 1
Kent's Comm. Lect. 10, p. 197, 19S. See also 1 Secret Journals of
Cono-ress in 1775, p. 3G8 to 386 ; Id. 433 to 43S ; Id. 445, 446.
2 1 Tuck. Black. Comm. App. 283, 284, 285, 28() ; 2 Pitkin's Hist,
ch. 11, p. 33 to 36; 1 U. S. Laws, (Duane &l Bioren's Edition,) p. 467,
472 ; ante vol. 1, § 227, 228.
VOL. III. 24
186 CONSTITUTION OF THE U. STATES. [bOOK III.
ish posts, or in maintaining and acquiring the territory,
should be reimbursed/
^ 1311. Of the power of the general government
thus constitutionally to acquire territory under the arti-
cles of the confederation, serious doubts were at the
time expressed ; more serious than, perhaps, upon
sober argument, could be justified. It is difficult to
conceive, why the common attribute of sovereignty, the
powder to acquire lands by cession, or by conquest, did
not apply to the government of the Union, in common
with other sovereignties ; unless the declaration, that
every power not expressly delegated was retained by the
states, amounted to (w hich admitted of some doubt) a
consdtutional prohibition.^ Upon more than one occasion
it has been boldly pronounced to have been founded in
usurpation. " It is now no longer," said the FederaUst
in 1788, "a point of speculation and hope, that the
western territory is a mine of vast wealth to the United
States ; and although it is not of such a nature, as to
extricate them from their present distresses, or for
some time to come to yield any regular supplies for the
public expenses ; yet it must hereafter be able, under
proper management, both to effect a gradual discharge
of the domesdc debt, and to furnish for a certain period
liberal tributes to the federal treasury. A very large
proportion of this fund has been already surrendered
by individual states ; and it may with reason be ex-
pected, that the remaining states will not persist in
withholding similar proofs of their equity and generosity.
1 See 1 Secret Journals of Congress, 6th Sept. 1780, p. 440 to 444 ;
6 Journal of Congress, 10th Oct. 1780, p. 213 ; 2 Pitkin's Hist. ch. 11,
p. 34, 35, 3G ; 7 Journal of Congress, 1st March, 1781, p. 43 to 48 ; Land
Laws of U. S. Introductory chapter, 1 U. S. Laws, p. 452, (Duane &l
Bioren's Edition.)
2 See Amer. Insur. Company v. Canter, 1 Peters's Sup. R. 51 1, 542.
CH. XXX.] POWEKS OF CONGUKSS -TF. lU! ITO lil KS. lS7
We may calculate, therefore, that a rich mul fertile soil
of an area equal to the inhabited extent of ihe United
States will soon become a national stock. C()n,ii;ress
have assumed the administi'ation of this stot k. They
have begun to make it productive. Congress have
undertaken to do more ; they have proceeded to Ibrm
new states ; to erect temporary governments ; to ap-
point officers for them ; and to prescribe the conditions,
on which such states shall be admitted into the con-
federacy. Jill this has been done, and done without
the least colour of constitutional authority. Yet no
blame has been whispered, and no alarm has been
sounded." ^
§ 1312. The truth is, that the importance, and even
justice of the title to the public lands on the part of the
federal government, and the additional security, which
it gave to the Union, overcame all scruples of the peo-
ple, as to its constitutional character. The measure, to
which the Federalist alludes in such emphatic terms, is
the famous ordinance of congress, of the 13th of July,
1787, wdiich has ever since constituted, in most re-
spects, the model of all our territorial governments ;
and is equally remarkable for the brevity and exactness
of its text, and for its masterly display of the funda-
mental principles of civil and religious liberty. It be-
gins by providing a scheme for the descent and distri-
butions of estates equally among all the children, and
their representatives, or other relatives of the deceased
in equal degree, making no distinction betw^een the
whole and half blood ; and for the mode of disposing of
real estate by will, and by conveyances. It then pro-
ceeds to provide for the organization of the territorial
1 Tho Ffvlornlist. No. 31=^. 12, 43.
188 CONSTITUTION OF THE U. STATES. [bOOK III.
governments, according to their progress in population,
confiding the whole power to a governor and judges in
the first instance, subject to the control of congress.
As soon as the territory contains five thousand inhabi-
tants, it provides for the establishment of a general
legislature, to consist of three branches, a governor, a
legislative council, and a house of representatives ; with
a power to the legislature to appoint a delegate to con-
gress. It then proceeds to state certain fundamental
articles of compact between the original states, and the
people and states in the territory, which are to remain
unalterable, unless by common consent. The first pro-
vides for freedom of religious opinions and worship.
The second provides for the right to the writ of habeas
corpus ; for the trial by jury ; for a proportionate rep-
resentation in the legislature ; for judicial proceedings
according to the course of the common law^ ; for capital
offences being bailable ; for fines being moderate, and
punishments not cruel or unusual ; for no man's being
deprived of his liberty or property, but by the judg-
ment of his peers, or the law of the land ; for full com-
pensation for property taken, or services demanded for
the public exigencies ; " and for the just preservation of
"rights and property, that no law ought ever to be
"made, or have force in the said territory, that shall
" in any manner whatever interfere ivith, or affect private
'^ contracts or engagements, bond fide, and without fraud
"previously formed." The third provides for the
encouragement of religion, and education, and schools,
and for good faith and due respect for the rights and
property of the Indians. The fourth provides, that the
territory and states formed therein shall for ever re-
main a part of the confederacy, subject to the constitu-
tional authority of congress ; that the inhabitants shall
CH. XXX.] POWERS OF CONGRESS -TERU MORI KS. 189
be liable to be taxed proportionately for the public ex-
penses ; that the legislatures in the territory shall never
interfere with the primary disposal of the soil by con-
gress, nor with their regulations for securing the title
to the soil to purchasers ; that no tax shall be imposed
on lands, the property of the United States ; and non-
resident proprietors shall not be taxed more than resi-
dents ; that the navigable waters leading into the Mis-
sissippi and St. Lawrence, and the carrying places be-
tween the same shall be common highways, and for
ever free. The fifth provides, that there shall be formed
in the territory not less than three, nor more than fiye
states with certain boundaries ; and whenever any of
the said states shall contain 60,000 free inhabitants,
such state shall (and may before) be admitted by its
delegates into congress on an equal footing with the
original states in all respects whatever, and shall be at
liberty to form a permanent constitution and state gov-
ernment, provided it shall be republican, and in con-
formity to these articles of compact. The sixth and
last provides, that there shall be neither slavery nor
involuntary servitude in the said territory, otherwise
than in the punishment of crimes ; but fugitives from
other states, owing service therein, may be reclaimed.^
Such is a brief ouUine of this most important ordinance,
the effects of which upon the destinies of the country
have already been abundantly demonstrated in the ter-
ritory, by an almost unexampled prosperity and rapidity
of population, by the formation of republican govern-
ments, and by an enlightened system of jurisprudence.
Already three states, composing apart of that territory.
1 See 3 Story's Laws of United States App. J2073, kc. ; 1 Tucker's
Black. Comm. App. 278, 282.
190 CONSTITUTION OF THE U. STATES. [bOOK III
have been admitted into the Union ; and others are fast
advancing towards the same grade of political dignity/
^ 1313. It was doubdess with reference principally
to this territory, that the article of the constitution, now
under consideration, was adopted. The general pre-
caudon, that no new states shall be formed without the
concurrence of the national government, and of the states
concerned, is consonant to the principles, which ought
to govern all such transactions. The particular precau-
tion against the erection of new states by the partition
of a state without its own consent, will quiet the jeal-
ousy of the larger states ; as that of the smaller will also
be quieted by a like precaution against a junction of
states without their consent.^ Under this provision no
less than eleven states have, in the space of little more
than forty year.--, been admitted into the Union upon an
equality with the original states. And it scarcely re-
quires the spirit of prophecy to foretell, that in a few
years the predominance of numbers, of population, and
of power will be unequivocally transferred from the old
to the new states. May the patriotic wish be for ever
true to the fact, felix prole parens,
^ 1314. Since the adoption of the constitution large
acquisitions of territory have been made by the United
States, by the purchase of Louisiana and Florida, and
by the cession of Georgia, which have gready increased
the contemplated number of states. The constitution-
1 In Mr. Webster's Speech on JVIr. Footc's Resolution, in Jan. 1830,
there is a very interesting- and powerful view of this subject, which will
amply repay the dili*rence of a deliberate perusal. See Webster's
Speeclics, &,c. ]>. 860 to 3(J4; Id. 3G9. It is well known, that tjie ordi-
nance of 1787 was drawn by the Hon. Nathan Dane of Massachusetts,
and adopted with scarcely a verbal alteration by Congrc.^^s. It is a no-
ble and imperishable monument to his fame.
2 The Federalist, No. 43.
CH. XXX.] POWERS'OF COXGRKSS - Ti:iiI(ITf)HI i:s. lOl
alky of the two former acquisitions, ihouij^h formerly
much questioned, is now considered settled beyond any
practical doubt.^
^ 1315. Ai the time, when the preliminary measures
were taken for the admission of the state of Missouri
into the Union, an attempt was made to include a re-
striction, prohibiting the introduction of slavery into that
state, as a condition of the admission. On that occasion
the question was largely discussed, whether congress
possessed a constitutional authority to impose such a
restriction, upon the ground, that the prescribing of
such a condition is inconsistent with the sovereignty of
the state to be admitted, and its equality with the other
states. The fmal result of the vote, which authorized
the erection of that state, seems to establish the rightful
authority of congress to impose such a restriction, al-
though it was not then applied. In the act passed for this
purpose, there is an express clause, that in all the ter-
ritory ceded by France to the United States under the
name of Louisiana, which lies north of 36^ 30' N. Lat.,
not included within the limits of the state of JVIissouri,
slavery and involuntary servitude, otherwise than in the
punishment of crimes, whereof the parties shall have
been duly convicted, shall be, and is hereby for ever
prohibited.^ An objection of a similar character was
taken to the compact between Virginia and Kentucky
upon the ground, that it was a restriction upon state
sovereignty. But the Supreme Court had no hesita-
1 See Ante, Vol. iii. p. I5(i, § 1278 to § 1283; American Insurance
Company v. Canter^ \ Pcters's Sup. R. 511, 542.
2 Act. 6, March 1820, ch. 20. — The same subject was immediately
afterwards much discussed in the state legislatures; and opposite opin-
ions were expressed by different states in the form of solemn resolu-
tions.
192 COXSTITUTION OF THE U. STATES. [bOOK III.
tion in overruling it, considering it as opposed by the
theory of all tree governments, and especially of those,
which constitute the American Republics.^
Green v. Biddle, 8 Wheat. R. 1, 87, 88.
CH. XXXI.] POWERS OF COJVGKKSS-TKUlllTOkl KS. 193
CHAPTER XXXI.
POWERS OF CONGRESS TERRITORIAL GOVERN-
MENTS.
§ 1316. The next clause of the same article is, " The
" congress shall have power to dispose of and make all
" needful rules and regulations respecting the territory
" and other property belonging to the United States ;
" and nothing in this constitution shall be so construed,
" as to prejudice any claims of the United States, or
" of any particular state." The proviso thus annexed to
the power is certainly proper in itself, and was probably
rendered necessary by the jealousies and questions con-
cerning the Western territory, which have been already
alluded to under the preceding hcad.^ It was perhaps
suggested by the clause in the ninth article of the con-
federation, which contained a proviso, " that no state
shall be deprived of territory for the benefit of the Unit-
ed States."
§ 1317. The power itself was obviously proper, in
order to escape from the constitutional objection al-
ready stated to the power of congress over the territo-
ry ceded to the United States under the confederation.
The clause was not in the original draft of the con-
stitution ; but was added by the vote of ten states
against one.^
§ 1318. As the general government possesses the
right to acquire territory, either by conquest, or by treaty,
it would seem to follow, as an inevitable consequence.
1 The Federalist, No. 43; ante, cli. 30.
2 Journal of Convention, p. 228, 310, 311, 3G5.
VOL. IIL 25
194 CONSTITUTION OF THE U. STATES. [bOOK III.
that it possesses the power to govern, what it has so ac-
qmred. The territory does not, when so acquired, be-
come^entitled to self-government, and it is not subject
to the jurisdiction of any state. It must, consequently,
be under the dominion and jurisdiction of the Union, or
it would be without any government at all.^ In cases
of conquest, the usage of the world is, if a nation
is not wholly subdued, to consider the conquered
territory, as merely held by mihtary occupation, until
its fate shall be determined by a treaty of peace.
But during this intermediate period it is exclu-
sively subject to the government of the conqueror.
In cases of confirmation or cession by treaty, the
acquisition becomes firm and stable ; and the ceded
territory becomes a part of the nation, to which it is
annexed, either on terms stipulated in the treaty, or on
such, as its new^ master shall impose. The relations of
the inhabitants with each other do not change ; but
their relations with their former sovereign are dissolved ;
and new relations are created between them and their
new sovereign. The act transferring the country trans-
fers the allegiance of its inhabitants. But the general
laws, not strictly pohtical, remain, as they were, until
altered by the new sovereign. If the treaty stipulates,
that they shall enjoy the privileges, rights, and immu-
nities of citizens of the United States, the treaty, as a
part of the law of the land, becomes obligatory in these
respects. Whether the same elTects would result from
the mere fact of their becoming inhabitants and citizens
by the cession, without any express stipulation, may
deserve inquiry, if the question should ever occur.
1 .limrican Insurance Company v. Canter, I Peters's Sup. R. 511,542,
543; Id. 517, Mr. Jusii-c Johnson's Opinion.
CM. XXXI.] POWERS OF CONGUESS-TERIUTOUIKS. 195
But they do not participate in political power ; nor can
they share in the powers of the general government,
until they become a state, and are admitted into the
Union, as such. Until that period, the teiritory re-
mains subject to be governed in such manner, as con-
gress shall direct, under the clause of the constitution
now under consideration.^
§ 1319. No one has ever doubted the authority of
congress to erect territorial governments within the
territory of the United States, under the general lan-
guage of the ( lause, " to make all needful rules and
regulations." Indeed, with the ordinance of 1787 in
the very view of the framers, as well as of the people of
the states, it is impossible to doubt, that such a pow-
er was deemed indispensable to the purposes of the
cessions made by the states. So that, notwithstand-
ing the generality of the objection, (already examined,)
that congress has no power to erect corporations, and
that in the convention the power was refused ; we see,
that the very power is an incident to that of regulating
the territory of the United States ; that is, it is an ap-
propriate means of carrying the power into effect.^
What shall be the form of government estabhshed
in the territories depends exclusively upon the discre-
tion of congress. Having a right to erect a territorial
government, they may confer on it such powers, legis-
lative, judicial, and executive, as they may deem best.
They may confer upon it general legislative powers,
subject only to the laws and constitution of the United
1 American Insurance Company v. Canter, 1 Peters's Sup. R. 511, 542,
543
3 See ante § 12G0, 12GI ; 4 Jefferson's Corresp. 523, 525; Hamilton
on the Bank of U. S, 1 Hamilton's Works, 121, 127 to 131 ; Id. 135, 147,
151 ; Id. 114, 115 Act of Congress, 7th Aug. 1789, ch. 8.
196 COJVSTITUTIOX OF THE U. STATES. [bOOK III.
States. If the power to create courts is given to the
territorial legislature, those courts are to be deemed
strictly territorial ; and in no just sense constitutional
courts, in which the judicial power conferred by the
constitution can be deposited. They are incapable of
receiving it. They are legislative courts, created in
virtue of the general right of sovereignty in the govern-
ment, or in virtue of that clause, which enables con-
gress to make all needful rules and regulations respect-
ing the territory of the United States.^ The power is
not confined to the territory of the United States ; but
extends to " other property belonging to the United
States ; " so that it may be appUed to the due regula-
tion of all other personal and real property rightfully
belonging to the United States. And so it has been
constantly understood, and acted upon.
^ 1320. As if it were not possible to confer a single
power upon the national government, which ought not
to be a source of jealousy, the present has not been
without objection. It has been suggested, that the sale
and disposal of the Western territory may become a
source of such immense revenue to the national gov-
ernment, as to make it independent of, and formidable
to, the people. To amass immense riches (it has been
said) to defray the expenses of ambition, when occa-
sion may prompt, without seeming to oppress the peo-
ple, has uniformly been the policy of tyrants. Should
such a policy creep into our government, and the sales
of the public lands, instead of being appropriated to the
discharge of the public debt, be converted to a treasure in
a bank, those, who, at any time, can command it, may be
tempted to apply it to the most nefarious purposes. The
1 American Insurance Company v. Canter, ^ Peters's Sup. R. 5)1,
54a
CH. XXXI.] l^OWERS OF CONGRESS - 'PKIlRTTOni KS. If)?
improvident alienation of the crown lands in iMii^land
has been considered, as a circumstance extremely ia-
vourable to the hberty of the nation, by rendering the
government less independent of the people. The same
reason will apply to other governments, whether mo-
narchical or republican.^
^ 1321. What a strange representation is this of a
repubhcan government, created by, and responsible to,
the people in all its departments ! What possible
analogy can there be between the possession of large
revenues in the hands of a monarch, and large revenues
in the possession of a government, whose administration
is confided to the chosen agents of the people for a short
period, and may be dismissed almost at pleasure ? If
the doctrine be true, which is here inculcated, a repub-
lican government is little more than a dream, however
its administration may be organized ; and the people
are not worthy of being trusted with large public rev-
enues, since they cannot provide against corruption,
and abuses of them. Poverty alone (it seems) gives a
security for fidelity ; and the liberties of the people are
safe only, when they are pressed into vigilance by the
power of taxadon. In the view of this doctrine, what
is to be thought of the recent purchases of Louisiana
and Florida ? If there was danger before, how mighti-
ly must it be increased by the accession of such a vast
extent of territory, and such a vast increase of resources?
Hitherto, the experience of the country has justified no
alarms on this subject from such a source. On the other
hand, the public lands hold out, after the discharge of
the national debt, ample revenues to be devoted to the
cause of education and sound learning, and to internal
improvements, without trenching upon the property, or
1 1 Tuck, Black. Comm. App. 284.
198 CONSTITUTION OF THE U. STATES. [bOOK III.
embarrassing the pursuits of the people by burthen-
some taxation. The constitutional objection to the
appropriation of the other revenues of the government
to such objects has not been supposed to apply to
an appropriation of the proceeds of the public lands.
The cessions of that territory were expressly made for
the common benefit of the United States ; and there-
fore constitute a fund, which may be properly devoted
to any objects, which are for the common benefit of
the Union.^
^ 1322. The power of congress over the public
territory is clearly exclusive and universal ; and their
legislauon is subject to no control; but is absolute,
and unlimited, unless so far as it is affected by stipula-
tions in the cessions, or by the ordinance of 1 787, un-
der which any part of it has been settled.^ But the
power of congress to regulate the other national
property (unless it has acquired, by cession of the
states, exclusive jurisdiction) is not necessarily exclu-
sive in all cases. If the national government own a
fort, arsenal, hospital, or hghthouse estabUshment, not
so ceded, the general jurisdiction of the state is not
excluded in regard to the site; but, subject to the
rightful exercise of the powers of the national govern-
ment, it remains in full force.^
§ 1323. There are some other incidental powers
given to congress, to carry into effect certain other
1 1 Kent's Cornm. Lect. 12, p. 242, 243; Id. Lect. 17, p. 359.
2 Rawle on Const, ch. 27, p. 237 ; 1 Kent's Coinm. Lect. 12, p. 243 ;
Id.Lcct. 17, p. 359, 3(i0.
3 Rawle on Const, ch. 27, p. 240; The People v. Godfrey, 17 Johns.
R. 225; Commomocalth v. Younu:, 1 Hall's Journal of Jiirisp. 47. —
Sergeant on Const, ch. 31, [ch. 33.] —Whether the jrcneral doctrine in
the case of Commomvcallh v. Yoimg, (1 Hall's Journal 47,) can be main-
tained, in its application to that case, is quite a different question.
en. XXXI.] POWERS OF CONGRESS -TEIUIITOUIKS. 199
provisions of the constitution. ]3ut they will most
properly come under considenition in a future part
of these Commentaries. At present, it may suffice to
say, that with reference to due energy in the govern-
ment, due protection of the national interests, and due
security to the Union, fewer powers could scarcely
have been granted, without jeoparding the whole sys-
tem. Without the power of the purse, the power to de-
clare war, or to promote the common defence, or gene-
ral welfare, would have been wholly vain and illusory.
Without the power exclusively to regulate commerce,
the intercourse between the states would have been
constantly Uable to domesdc dissensions, jealousies, and
rivalries, and to foreign hostilities, and retaliatory res-
trictions. The other powers are principally auxiliary
to these ; and are dictated at once by an enlightened
pohcy, a devotion to justice, and a regard to the per-
manence (may it ripen into a perpetuity!) of the
Union. ^
1 Among the extraordinary opinions of Mr. Jefferson, in regard to
government in general, and especially to the government of the United
States, none strikes the calm observer with more force, than the cool
and calculating manner, in which lie surveys the probable occurrence
of domestic rebellions. "I am," ho says, "not a friend to a very ener-
getic government. It is always oppressive. It places the governors,
indeed, more at their ease, at the expense of the people. The late re-
bellion in Massachusetts (in 1787) has given more alarm, than I think
it should have done. Calculate, that one rebellion in thirteen states, in
the course of eleven years, is but one for each state, in a century and a
half JVo country should he so long without one. Nor will any degree
of power in the hands of government prevent insurrections." Letter
to Mr. Madison, in 1787, 2 .Jefferson's Corresp. 276. Is it not surpris-
ing, that any statesman should have overlooked the horrible evils, and
immense expenses, which are attendant upon every rebellion? The
loss of life, the summary exercise of military power, the desolations of
the country, and the inordinate expenditures, to which every rebellion
must give rise ? Is not the great object of every good government to
200 CONSTITUTION OF THE U. STATES. [bOOK III*
§ 1324. As there are incidental powers belonging to
the United States in their sovereign capacity, so there
are incidental rights, obligations, and duties. It may
be asked, how these are to be ascertained. In the first
place, as to duties and obligations of a public nature,
they are to be ascertained by the law of nations, to
which, on asserting our independence, we necessarily
became subject. In regard to municipal rights and
obligations, whatever differences of opinion may arise
in regard to the extent, to which the common law at-
taches to the national government, no one can doubt,
that it must, and ought to be resorted to, in order to as-
certain many of its rights and obhgations. Thus, when
a contract is entered into by the United States, we
naturally and necessarily resort to the common law, to
interpret its terms, and ascertain its obligations. The
same general rights, duties, and limitations, which the
common law attaches to contracts of a similar charac-
ter between private individuals, are applied to the con-
tracts of the government. Thus, if the United States
become the holder of a bill of exchange, they are bound
to the same diligence, as to giving notice, in order to
preserve, and perpetuate domestic peace, and the security of property,
and the reasonable enjoyment of private rights, and personal liberty?
If a state is to be torn into factions, and civil wars, every eleven years,
is not the whole Union to become a common sufferer ? How, and when
are such wars to terminate ? Are the insurgents to meet victory or
defeat? lias not history established the melancholy truth, that con-
stant wars lead to military dictatorship, and despotism, and are inconsis-
tent with the free spirit of republican governments ? If the tranquillity
of the Union is to be disturbed every eleventh year by a civil war,
what repose can there be for the citizens in their ordinary pursuits?
Will they not soon become tired of a republican government, which
invites to such eternal contests, ending in blood, and murder, and
rapine ? One cannot but feel far more sympathy with the opinion
of Mr. Jefferson, in the same letter, in which he expounds the great
political maxim, " Educate and inform the whole mass of the people."
2 Jefferson's C'orrcsp. 'i7tJ.
CH. XXXr.] POWERS OF CONGRESS-TERRITORIES. 201
chaj^ge an indorser, upon the dishonour of the bill, as
a private holder would be.^ In like manner, \vh(;n a
bond is entered into by a surety for the laithiul dis-
charge of the duties of an office by his principal, the
nature and extent of the obligation, created by the in-
strument, are constantly ascertained by reference to the
common law ; though the bond is given to the govern-
ment in its sovereign capacity.^
1 United States v. Barker, 12 Wheat. R. 559.
2 See, among other cases, United States v. Kirkpalrick, 9 Wheat. R.
720 ; Farrar v. United Slates, 5 Petcrs's R. :i7:J ; Smith v. United Slates,
5 Peters's R. 294; United Stales v. Tingey, 5 Peters's R. 115; United
Slates V. Buford, 3 Peters's R. 12, 30.
VOL. III. 26
202 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XXXII.
PROHIBITIONS ON THE UNITED STATES.
§ 1325. Having finished this review of the powers
of congress, the order of the subject next conducts us
to the prohibitions and(imitations upon these powers,
which are contained in the ninth section of the first
article. Some of these have already been under dis-
cussion, and therefore will be pretermitted.^
^ 1326. The first clause is as follows: "The mi-
" gration, or importation of such persons^ as any of the
" states now existing shall think proper to admit, shall
" not be prohibited by the congress, prior to the year
"one thousand eight hundred and eight; but a tax,
" or duty, may be imposed on such importation, not
" exceeding ten dollars for each person."
^ 1327. The corresponding clause of the first draft
of the constitution was in these words : " No tax, or
duty, shall be laid, &c. on the migration, or importa-
tion of such persons, as the several states shall think
proper to admit; nor shall such migration, or impor-
tation be prohibited." In this form it is obvious, that
the migration and importation of slaves, which was the
sole object of the clause, was in effect perpetuated, so
long, as any state should choose to aUow the traffic.
The subject was afterwards referred to a committee,
who reported the clause substantially in its present
shape ; except that the limitation Avas the year one thou-
sand eight hundred, instead of one thousand eight hun-
1 Those, which respect taxation, and the reguKition of commerce,
have been considered under former heads ; to which the learned reader
is referred. Ante, Vol. II, ch. 14, !.=>.
CH. XXXII.] POWERS OF CONGRESS-SLAVE-THADE. 203
dred and eight. The latter amendment was substitut-
ed by the vote of seven states against four ; and as
thus amended, the clause was adopted by the like vote
of the same states.^
§ 1328. It is to the honour of America, that she
should have set the first example of interdicting and
abolishing the slave-trade, in modern times. It is well
known, that it constituted a grievance, of which some
of the colonies complained before the revolution, that
the introduction of slaves was encouraged by the
crown, and that prohibitory laws were negatived.^ It
was doubdess to have been wished, that the power of
prohibiting the importation of slaves had been allowed
to be put into immediate operation, and had not been
postponed for twenty years. But it is not difHcult to
account, either for this restriction, or for the manner, in*
which it is expressed.^ It ought to be considered, as a
great point gained in favour of humanity, that a period
of twenty years might for ever terminate, within the
United States, a traffic, which has so long, and so loudly
upbraided the barbarism of modern policy. Even
within this period, it might receive a very considerable
discouragement, by curtailing the traffic between for-
1 Journ.of Convention, p. 222, 275, 276, 285, 29], 292, 358, 378;
2 Pitk. Hist. eh. 20, p. 261, 262.— It is well known, as an historical fact,
that South-Carolina and Geororja insisted upon this limitation, as a con-
dition of the Union. See 2 Elliot's Deb. 335, 336 ; 3 ElHot's Deb. 97. •
2 See 2 Elliot's Debates, 335; J Secret Journal of Congress, 378,
379.
3 See 3 Elliot's Debates, 98, 250, 251 ; 3 Elliot's Debates, 335 to 338.
— In the orig-inal draft of the Declaration of Independence by Mr.
Jefferson, there is a very strong paragraph on tliis subject, in which the
slave-trade is denounced, " as a piratical warfare, the opprobrium of infidel
powers, and the warfare of the Christian king of Great Britain, deter-
mined to keep open a market, where men should be bought and sold ;"
and it is added, that "he has prostituted his negative for suppressing
every legislative attempt to prohibit, or restrain this execrable com-
merce." 1 Jefferson's Corresp. 146, in the fac simile of the original.
204 CONSTITUTION OF THE U. STATES. [bOOK III.
eign countries ; and it might even be totally abolished by
the concurrence of a few states.^ " Happy," it was then
added by the Federalist, "would it be for the unfortu-
nate Africans, if an equal prospect lay before them of
being redeemed from the oppressions of their European
brethren,"^ Let it be remembered, that at this period
this horrible traffic was carried on with the encourage-
ment and support of every civilized nation of Europe ;
and by none with more eagerness and enterprize, than
by the parent country. America stood forth alone, un-
cheered and unaided, in stamping ignominy upon this
traffic on the very face of her constitution of govern-
ment, although there were strong temptations of inter-
est to draw her aside from the performance of this
great moral duty.
^1329. Yet attempts were made to pervert this
clause into an objection against the constitution, by
representing it on one side, as a criminal toleration of
an illicit practice ; and on another, as calculated to
prevent voluntary and beneficial emigrations to Amer-
ica.^ Nothing, perhaps, can better exemplify the
spirit and manner, in which the opposition to the con-
sdtution was conducted, than this fact. It was notori-
ous, that the postponement of an immediate abolition
was indispensable to secure the adoption of the consti-
tution. It was a necessary sacrifice to the prejudices
and interests of a portion of the Southern states.^ The
glory of the achievement is scarcely lessened by its
having been gradual, and by steps silent, but irre-
sistible.
1 Tl.e Federalist, No. 42. ~ Ibid.
3 Tiie Federalist, No. 42; 2 Elliot's Debates, 335, 336 ; 3 Elliot's
Debates, 2.')(), 2.') 1.
4 2 Elliot's Debates, 335, 336 ; I Lloyd's Deb. 305 to 313 ; 3 Elliot's
Debates, 97 ; Id. 250, 251 ; 1 Elliot's Debates, 60 ; ITuck. Black. Comm-
App. 200,
CH. XXXII.] POWERS OF CONGRESS - SLA VE-TRADH. 205
§ 1330. Congress lost no time in interdicting the
traffic, as far as their power extended, by a prohibi-
tion of American citizens carrying it on between for-
eign countries. And as soon, as the stipulated period
of twenty years had expired, congress, by a prospec-
tive legislation to meet the exigency, abolished the
whole traffic in every direction to citizens and resi-
dents. Mild and moderate laws were, how ever, found
insufficient for the purpose of putting an end to the
practice ; and at length congress found it necessary to
declare the slave-trade to be a piracy, and to punish it
with death.^ Thus it has been elevated in the cata-
logue of crimes to this 'bad eminence' of guilt; and
has now annexed to it the infamy, as well as the re-
tributive justice, which belongs to an offence equally
against the laws of God and man, the dictates of human-
ity, and the solemn precepts of religion. Other civiliz-
ed nations are now alive to this great duty ; and by the
noble exertions of the British government, there is now
every reason to believe, that the African slave-trade
will soon become extinct ; and thus another triumph
of virtue-wwiM , be obtained over brutal violence and
unfeeling cruelty.^
§ 1331. This clause of the constitution, respecting
the importation of slaves, is manifestly an exception
from the power of regulating commerce. Migration
seems aopropriately to apply to voluntary arrivals, as
importation does to involuntary arrivals ; and so far, as
an exception from a power proves its existence, this
proves, that the power to regulate commerce applies
equally to the regulation of vessels employed in trans-
1 Act of 1820, ch. 113.
2 See 1 Kent's Comm. Lect. 9, n. 179 to 187.
206 CONSTITUTION OF THE U. STATES. [bOOK III.
por<'' g men, who pass from place to place voluntarily,
as to those, who pass involuntarily.^
§ 1332. The next clause is, "The privilege of the
" writ of habeas corpus shall not be suspended, unless
"when, in cases of rebeUion or invasion, the public
" safety may require it."
^ 1333. In order to understand the meaning of the
terms here used, it will be necessary to have recourse to
the common law ; for in no other way can we arrive
at the true definition of the writ of habeas corpus. At
the common law there are various writs, called writs of
habeas corpus. But the particular one here spoken of is
that great and celebrated writ, used in all cases of illegal
confinement, known by the name of the writ of habeas
corpus ad subjiciendum, directed to the person detaining
another, and commanding him to produce the body of
the prisoner, with the day and cause of his caption and
detention, ad faciendum, subjiciendum, et recipiendum,
to do, submit to, and receive, whatsoever the judge or
court, awarding such writ, shall consider in that behalf.^
It is, therefore, jusdy esteemed the great buhvark of
personal liberty ; since it is the appropriate remedy to
ascertain, whether any person is rightfully in confine-
ment or not, and the cause of his confinement ; and if
no sufficient ground of detention appears, the party is
entided to his immediate discharge. This writ is most
beneficially construed ; and is appUed to every case of
illegal restraint, whatever it may be ; for every restraint
upon a man's liberty is, in the eye of the law, an impri-
sonment, wherever may be the place, or w hatever may
be the manner, in which the restraint is efTected.^
1 Gihhons V. Ogden, 9 Wheat. R. 1, 216, 217 ; Id. 20C, 207.
2 3 Black. Comm. 131.
3 2 Kent. Comm. Lect. 24, p. 22, &c. (2 edit. p. 26 to 32.)
CH. XXXII.] POWERS OF CONGRESS -HAB. CORPUS. 207
§ 1334. Mr. Justice Blackstone has remarked with ^
great force, that " to bereave a man of life, or by vio-
lence to confiscate his estate without accusation or trial,
would be so gross and notorious an act of despotism
as must at once convey the alarm of tyranny through-
out the whole kingdom. But confinement of the per-
son by secretly hurrying him to gaol, where his suffer-
ings are unknown or forgotten, is a less public, a less
striking, and therefore a more dangerous engine of^/
arbitrary force." ^ While the justice of the remark
must be felt by all, let it be remembered, that the right
to pass bills of attainder in the British parliament still
enables that body to exercise the summary and awful
power of taking a man's life, and confiscating his estate,
without accusation or trial. The learned commentator,
however, has shd over this subject with surprising del-
icacy.^
§ 1335. In England this is a high prerogative writ,
issuing out of the Court of King's Bench, not only in
term time, but in vacation, and running into all parts of
the king's dominions ; for it is said, that the king is
entitled, at all dmes, to have an account, why the liber-
ty of any of his subjects is restrained. It is grantable,
however, as a matter of right, ex merito justitice, upon the
application of the subject.^ In England, however, the
benefit of it was often eluded prior to the reign of
Charles the Second ; and especially during the reign
of Charles the First. These pitiful evasions gave rise
to the famous Habeas Corpus Act of 31 Car. 2, c. 2,
which has been frequently considered, as another
magna charta in that kingdom ; and has reduced the
1 1 Black. Comm. 136. - 4 Bla'^k. Comm. 259.
3 4 Inst. 290; 1 Kent's Comm. Lect. 24, p. 22, (p. 26 to 32;)'3 Black.
Comm. 133.
208 CONSTITUTION OF THE U. STATES. [bOOK III.
general method of proceedings on these writs to the
true standard of law and liberty.^ That statute has
been, in substance, incorporated into the jurisprudence
of every state in the Union ; and the right to it has
been secured in most, if not in all, of the state constitu-
tions by a provision, similar to that existing in the con-
stitution of the United States.^ It is not without rea-
son, therefore, that the common law was deemed
by our ancestors a part of the law of the land, brought
with them upon their emigration, so far, as it was suited
to their circumstances ; since it affords the amplest
protection for their rights and personal hberty. Con-
gress have vested in the courts of the United States
full authority to issue this great writ, in cases falling
properly within the jurisdiction of the national gov-
ernment.^
§ 1336. It is obvious, that cases of a peculiar emer-
gency may arise, which may justify, nay even re-
quire, the temporary suspension of any right to the writ.
But as it has frequently happened in foreign^ countries,
and even in England, that the writ has, upon various
pretexts and occasions, been suspended, whereby per-
sons apprehended upon suspicion have suffered a long
imprisonment, sometimes from design, and sometimes,
because they were forgotten,^ the right to suspend it
is expressly confmed to cases of rebellion or invasion,
where the public safety may require it. A very just
and wholesome restraint, which cuts down at a blow a
fruitful means of oppression, capable of being abused in
1 3 Black. Comm. 135, 136 ; 2 Kent's Comm. Lect. 24, p. 22, 23, (2d
edit. p. 26 to 32.)
^ 2 Kent's Comm. Lect. 24, p. 23, 24, (2d edit. p. 26 to 32.)
3 £j: parfe BuUman, &c., 4 Cranch, 75 ; S. C. 2 Peters's Cond. R. 33.
' 4 3 Black. Comm. 137, 138 ; 1 Tuck. Black. Comm. App. 291, 292.
CH. XXXII.] POWERS OF CONGRESS -ATTAINDERS. 209
bad times to the worst of purposes. Hitherto no sus-
pension of the writ has ever been authorized by con-
gress since the estabhshment of the constitution.^ It
would seem, as the power is given to congress to
suspend the writ of habeas corpus in cases of rebellion
or invasion, that the right to judge, whether exigency
had arisen, must exclusively belong to that body.^
§ 1337. The next clause is, "lYo bill of attainder
"or ex post facto law shall be passed."
§ 1338. Bills of attainder, as they are technically
called, are such special acts of the legislature, as inflict
capital punishments upon persons supposed to be guilty
of high offences, such as treason and felony, without
any conviction in the ordinary course of judicial pro-
ceedings. If an act inflicts a milder degree of punish-
ment than death, it is called a bill of pains and penal-
1 Mr. Jefferson expressed a decided objection against the power to
suspend the writ of habeas corpus in any case whatever, declaring him-
self in favour of "the eternal and unremitting force of the habeas corpus
laws." 2 Jefferson's Corresp. 274, 291. — " Why," said he on another
occasion, "suspend the writ of habeas corpus in insurrections and rebel-
lions ?" — "If the public safety requires, that the government should
have a man imprisoned on less probable testimony in those, than in oth-
er emergencies, let him be taken and tried, retaken and retried, whde
the necessity continues, only giving him redress against the govern-
ment for damages." 2 Jefferson's Corresp. 344.— Yet the only attempt
ever made in congress to suspend the writ of habeas corpus was during
his administration on occasion of the supposed treasonable conspiracy of
Col. Aaron Burr. Mr. Jefferson sent a message to congress on tlie
subject of that conspiracy on 22d January, 1807. On tlie next day,
Mr. Giles of the senate moved a committee to consider the expediency
of suspending the writ of habeas corpus be appointed, and the motion
prevailed. The committee (Mr. Giles, chairman) reported a bill for this
purpose. The bill passed the senate, and was rejected in the house of
representatives by a vote of 1 13 for the rejection, against 19 in its favour.
See 3 Senate .Tournal, 22d January, 1807, p. 127; Id. 130, 131. 5 Journ.
of House of Representatives, 2(3th January, 1807, p. 550, 551, 552.
2 Martin v. Molt, 12 Wheat. R. 19. See also 1 Tuck. Black. Comm.
App. 292 ; 1 Kent's Comm. Lect. 12, (2d edit. p. 262 to 265.)
VOL. III. 27
210 CONSTITUTION OF THE U. STATES. [bOOK III.
ties.^ But in the sense of the constitution, it seems,
that biHs of attainder include bills of pains and penalties;
for the Supreme Court have said, " A bill of attainder
may affect the life of an individual, or may confiscate
his property, or both." ^ In such cases, the legislature
assumes judicial magistracy, pronouncing upon the
guilt of the party without any of the common forms and
guards of trial, and satisfying itself with proofs, when
such proofs are within its reach, whether they
are conformable to the rules of evidence, or not.
In short, in all such cases, the legislature exercises the
highest powder of sovereignty, and w^hat may be prop-
erly deemed an irresponsible despotic discretion, being
governed solely by wiiat it deems political necessity or
expediency, and too often under the influence of un-
reasonable fears, or unfounded suspicions. Such acts
have been often resorted to in foreign governments, as
a common engine of state ; and even in England they
have been pushed to the most extravagant extent in
bad times, reaching, as well to the absent and the dead,
as to the living. Sir Edward Coke ^ has mentioned it to
be among the transcendent powers of parliament, that
an act may be passed to attaint a man, after he is dead.
And the reigning monarch, who was slain at Bosworth,
is said to have been attainted by an act of parliament
a few months after his death, notwithstanding the
absurdity of deeming him at once in possession of the
throne and a traitor.^ The punishment has often been
inflicted without calling upon the party accused to
1 2 Woodeson's Law Lcct. G'25.
2 Fletcher v. Peck, G Cranch, R. 138 ; S. C. 2 Peters's Cond. R. 322 ;
1 Kent's Comm. Loct. 19, p. 382.
3 4 Coke. Inst. 3G, 37.
4 2 Woodeson's Lect. (;-2.?, G21.
CH. XXXII.] POWERS OF CONGRESS-ATTAINDERS. 211
answer, or without even the formality of proof; and
sometimes, because the law, in its ordinary course of
proceedings, would acquit the offender.^ The injustice
and iniquity of such acts, in general, constitute an irre-
sistible argument against the existence of the power.
In a free government it would be intolera])le ; and in
the hands of a reigning faction, it might be, and probably
would be, abused to the ruin and death of the most virtu-
ous citizens.^ Bills of this sort have been most usually
passed in England in times of rebellion, or of gross
subserviency to the crown, or of violent political ex-
citements ; periods, in which all nations are most liable
(as well the free, as the enslaved) to forget their du-
ties, and to trample .upon the rights and liberdes of
others.^
1 2 Woodeson's Lect. 624.
2 Dr. Paley has strongly shown his disapprobation of laws of this
sort. I quote from him a short but pregnant passage. " Tliis funda-
mental rule of civil jurisprudence is violated in the case of acts of at-
tainder or confiscation, in bills of pains and penalties, and in all ex post
facto laws whatever, in which parliament exercises the clouble office of
legislature and judge. And whoever either understands the value of
the rule itself, or collects the history of those instances, in which it has
been invaded, will be induced, I believe, to acknowledge, that it^had
been wiser and safer never to have departed from it. He will confess,
at least, that nothing but the most manifest and immediate peril of the
commonwealth will justify a repetition of these dangerous examples.
If the laws in being do not punish an offender, let him go unpunished ;
let the legislature, admonished of the defect of the laws, provide against
the commission of future crimes of the same sort. The escape of one
delinquent can never produce so much harm to the community, as may
arise from the infraction of a rule, upon which the purity of public jus-
tice, and the existence of civil liberty, essentially depend."
3 See 1 Tucker's Black. Comm. App. 292, 293 ; Rawle on Const, ch.
10, p. 119. See Cooper v. Telfair, 4 Dall. R. 14. — Mr. Woodeson, in
his Law Lectures. (Lect. 41,) has devoted a whole lecture to this sub-
ject, which is full of instruction, and will reward the diligent perusal of
the student. 2 Woodeson's Law Lect. G21. — During the American
revolution this power was used with a most unsparing hand ; and it Jias
212 CONSTITUTION OF THE U. STATES. [bOOK TII.
§ 1339. Of the same class are ex post facto laws,
that is to say, (in a literal sense,) laws passed after the
act done. The terms, ex post facto laws, in a compre-
hensive sense, embrace all retrospective laws, or laws
governing, or controlling past transactions, whether
they are of a civil, or a criminal nature. And there have
not been wanting learned minds, that have contended
with no small force of authority and reasoning, that
such ought to be the interpretation of the terms in the
constitution of the United States.^ As an original
question, the argument would be endded to grave con-
sideration ; but the current of opinion and authority has
been so generally one way, as to the meaning of this
phrase in the state constitudons, as well as in that of
the United States, ever since their adoption, that it is
difficult to feel, that it is now an open question.^ The
general interpretation has been, and is, that the phrase
applies to acts of a criminal nature only; and, that the
prohibition reaches every law, whereby an act is declar-
ed a crime, and made punishable as such, when it was
not a crime, when done ; or whereby the act, if a crime,
is aggravated in enormity, or punishment; or whereby
different, or less evidence, is required to convict an
offender, than was required, when the act was commit-
ted. The Supreme Court have given the following
definition. "An ex post facto law is one, w^hich ren-
been a matter of regret in succeeding times, however much it may have
been applaudedy/rtg-/-a?i/e hello. *
1 Mr. Justice Johnson's Opinion in Satterhe \ . Mathewson, 2 Peters's R.
416, and note, id. App. 681, &c. ; 2 Elliot's Debates, 353; 4 Wheat. R.
578, note ; Ogden v. Saunders, 12 Wheat. R. 286.
2 See Caldcr v. Bull, 3 Dull. 386; Fletcher v. Peck, 6 Cranch, 138;
S. C. I Peters's Cond. R. 172; 2 Peters's Cond. R. 308 ; The Federalist,
No. 44, 84 ; Journ. of Convention, Siipp. p. 431 ; 2 Amer. Mus. 536 ; 2
Elliot's Debates, 343, 352, 354; Ogdtn v. Saunders, 12 Wheat. R. 266,
303, 329, 330, 335 ; 1 Kent. Comm. Lect. 19, p. 381, 382.
CH. XXXII.] POWERS OF CONGllESS-EXPENSES. 213
ders an act punishable in a manner, in which it was
not punishable, when it was committed." ^ Such a law
may inflict penalties on the person, or may iiillict
pecuniary penalties, which swell the public treasury.^
Law^s, however, which mitigate the character, or pun-
ishment of a crime already committed, may not fall
within the prohibition, for they are in favour of the
citizen.^
§ 1340. The next clause (passing by such, as have
been already considered) is, "No money shall be
"drawn from the treasury but in consequence of ap-
"propriations made by law. And a regular statement
" and account of the receipts and expenditures of all
"public money shall be pubhshed from time to time."
^ 1341. This clause was not in the original draft of
the constitution ; but the first part was subsequently
introduced, upon a report of a committee; and the
latter part was added at the very close of the con-
vention.^
^ 1342.. The object is apparent upon the slightest
examination. It is to secure regularity, punctuality,
and fidelity, in the disbursements of the public money.
As all the taxes raised from the people, as well as the
revenues arising from other sources, are to be applied
to the discharge of the expenses, and debts, and other
engagements of the government, it is highly proper,
that congress should possess the povvcr to decide, how
and when any money should be applied for these
purposes. If it were otherwise, the executive would
1 Fletcher v. Peck, 6 Cranch, 138 ; S. C. 2 Peters's Cond. R. 322.
2 Ibid.
3 Rawle on Constitution, ch. 10, p. 119; 1 Tuck. Black. Comm. App.
293; 1 Kent. Comm. Lect. 19, p. 381, 382; Sergeant on Constitution,
ch. 28 [ch. 30] ; Cdder v. Bull, 3 Dall. R. 386.
4 Journal of Convention, 219, 328, 345, 358, 378.
214 CONSTITUTION OF THE U. STATES. [bOOK III.
possess an unbounded power over the public purse of
the nation ; and might apply all its monied resources
at his pleasure. The power to control, and direct the
appropriations, constitutes a most useful and salutary
check upon profusion and extravagance, as well as upon
corrupt influence and public peculation. In arbitrary
governments the prince levies what money he pleases
from his subjects, disposes of it, as he thinks proper,
and is beyond responsibility or reproof. It is wise to
interpose, in a republic, every restraint, by wdiich
the public treasure, the common fund of all, should be
applied, with unshrinking honesty to such objects, as
legitimately belong to the common defence, and the
general w^elfare. Congress is made the guardian of
this treasure ; and to make their responsibiUty complete
and perfect, a regular account of the receipts and ex-
penditures is required to be published, that the people
may know, what money is expended, for what pur-
poses, and by what authority.
^ 1343. A learned commentator has, however, thought,
that the provision, though generally excellent, is de-
fective in not having enabled the creditors of the
government, and other persons having vested claims
against it, to recover, and to be paid the amount judi-
cially ascertained to be due to them out of the public
treasury, without any appropriation.^ Perhaps it is
a defect. And yet it is by no means certain, that evils
of an opposite nature might not arise, if the debts,
judicially ascertained to be due to an individual by
a regular judgment, were to be paid, of course, out
of the public treasury. It might give an opportunity
for collusion and corruption in the management of
suits between the claimant, and the officers of the
1 1 Tuck. Black. Comm. App. 362 to 364.
CH. XXXII.] POWERS OF CONGRESS-NOBILITY. 215
government, entrusted with the performance of this
duty. Undoubtedly, when a judgment has been fairly
obtained, by which a debt against the government is
clearly made out, it becomes the duty of congress to
provide for its payment ; and, generally, though certain-
ly with a tardiness, which has become, in some sort, a
national reproach, this duty is discharged by congress
in a spirit of just liberality. But still, the known iact^
that the subject must pass in review before congress,
induces a caution and integrity in making and substan-
tiating claims, which would in a great measure be done
away, if the claim were subject to no restraint, and no
revision.
§ 1344. The next clause is, " No title of nobility shall
" be granted by the United States ; and no person hold-
" ing any office of profit or trust under them shall, with-
" out the consent of the congress, accept of any present,
" emolument, office, or title of any kind whatever, from
" any king, prince, or foreign state.
^ 1345. This clause seems scarcely to require even
a passing notice. As a perfect equality is the basis of
all our institutions, state and national, the prohibition
against the creation of any tides of nobility seems pro-
per, if not indispensable, to keep perpetually ahve a
just sense of this important truth. Distinctions between
citizens, in regard to rank, would soon lay the founda-
tion of odious claims and privileges, and silently subvert
the spirit of independence and personal dignity, which
are so often proclaimed to be the best security of
a repubhcan government.^
^1346. The other clause, as to the acceptance of
any emoluments, title, or office, from foreign govern-
1 The Federalist, No. 84.
216 CONSTITUTION OF THE U. STATES. [bOOK III.
ments, is founded in a just jealousy of foreign influ-
ence of every sort. Whether, in a practical sense, it
can produce much effect, has been thought doubtful. A
patriot will not be likely to be seduced from his duties
to his country by the acceptance of any tide, or pres-
ent, from a foreign power. An intriguing, or corrupt
agent, will not be restrained from guilty machinations
in the service of a foreign state by such constitutional
restrict'ions. Still, however, the provision is highly im-
portant, as it puts it out of the power of any officer of
the government to wear borrowed honours, which shall
enhance his supposed importance abroad by a titular
dignity at home.^ It is singular, that there should not
have been, for the same object, a general prohibition
against any citizen whatever, whether in private or
public life, accepting any foreign tide of nobility. An
amendment for this purpose has been recommended
by congress ; but, as yet, it has not received the ratifi-
cation of the consdtutional number of states to make it
obligatory, probably from a growing sense, that it is
wholly unnecessary.^
i 1 Tuck. Black. Comm. App. 205, 296; Rawle on Constitution, ch.
10, p. J 19, 120.
2 Rawlc on Constitution, ch. p. 10, 120.
CH. XXXIII.] PROHIBrTIONS TREATIES. 217
CHAPTER XXXIII.
PROHIBITIONS OX THE STATES.
^ 1347. The tenth section of the first article (to
which we are now to proceed) contains the prohibi-
tions and restrictions upon the authority of the states.
Some of these, and especially those, which regard the
power of taxation, and the regulation of commerce, have
already passed under consideration ; and will, therefore,
be here omitted. The others will be examined in the
order of the text of the constitution.
§ 1348. The first clause is, "No state shall enter
" into any treaty, alliance, or confederation ; grant
" letters of marque or reprisal ; coin money ; emit bills
" of credit ; make any thing but gold and silver coin a
" tender in payment of debts ; pass any bill of attainder,
" ex post facto law, or law impairing the obligation of
" contracts, or grant any title of nobility." ^
§ 1349. The prohibition against treades, alliances,
and confederations, constituted a part of the articles of
confederation,^ and was from thence transferred in
substance into the constitution. The sound policy,
1 In the original draft of the constitution, some of these prohibitory
clauses were not inserted ; and, particularly, the last clause, prohibiting
a state to pass any bill of attainder, ex post facto law, or law impairing"
the obligation of contracts. The former part was inserted by a vote of
seven states against three. The latter was inserted in the revised draft
of the constitution, and adopted at the close of the convention, whether
with, or without opposition, docs not appear.* It was probably suggest-
ed by the clause in the ordinance of 1787, (Art. 2,) which declared,
"that no law ought to be made, &c., that shall interfere with, or affect
private contracts, or engagements, bond Jide^ and without fraud, pre-
viously formed."
a Art. 6.
* Journal of Convention, p. 237, 302, 359, 377, 379.
VOL. III. 28
218 CONSTITUTION OF THE U. STATES. [bOOK III.
nay, the necessity of it, for the preservation of any na-
tional government, is so obvious, as to strike the most
careless mind. If every state were at Uberty to enter
into any treaties, aUiances, or confederacies, with
any foreign state, it would become utterly subver-
sive ol the power cohfided to the national government
on the same subject. Engagements might be entered
into by different states, utterly hostile to the interests of
neighbouring or distant states ; and thus the internal
peace and harmony of the Union might be destroyed,
or put in jeopardy. A foundation might thus be laid
for preferences, and retahatory systems, which w^ould
render the power of taxation, and the regulation of
commerce, by the national government, utterly futile.
Besides ; the intimate dangers to the Union ought not
to be overlooked, by thus nourishing within its own
bosom a perpetual source of foreign corrupt influ-
ence, which, in times of poUtical excitement and war,
might be wielded to the destruction of the indepen-
dence of the country. This, indeed, was deemed, by
the authors of the Federalist, too clear to require any
illustration.^ The corresponding clauses in the confed-
eration were still more strong, direct, and exact, in
their language and import.
^ 1350. The prohibition to grant letters of marque and
reprisal stands upon the same general ground; for
otherwise it would be in the power of a single state to
involve the whole Union in war at its pleasure. It is
true, that the granting of letters of marque and reprisal
is not always a prehminary to war, or necessarily de-
signed to provoke it. But in its essence, it is a hostile
measure for unredressed grievances, real or supposed ;
1 The Federalist, No. 44.
CH. XXXIII.] PROHIBITIONS COINAGE. 219
and therefore is most generally the precursor of an ap-
peal to arms by general hostilities. The security (as
has been justly observed) of the whole Union ought
not to be suffered to depend upon the petulance or
precipitation of a single state.^ Under the confedera-
tion there was a hke prohibition in a more limited form.
According to that instrument, no state could grant let-
ters of marque and reprisal, until after a declaration of
war by the congress of the United States.^ In times
of peace the power was exclusively confided to the
general government. The constitution has wisely, both
in peace and war, confided the whole subject to the
general government. Uniformity is thus secured in all
operations, which relate to foreign powers ; and an im-
mediate responsibility to the nation on the part of those,
for whose conduct the nation is itself responsible.^
^ 1351. The next prohibition is to coin money. We
have already seen, that the power to coin money, and
regulate the value thereof, is confided to the general
government. Under the confederation a concurrent
power was left in the states, with a restriction, that
congress should have the exclusive power to regulate
the alloy and value of the coin struck by the states.^
In this, as in many other cases, the constitution has
made a great improvement upon the existing system.
Whilst the alloy and value depended on the general gov-
ernment, a right of coinage in the several states could
have no other effect, than to multiply expensive mints,
and diversify the forms and weights of the circulating
coins. The latter inconvenience would defeat one
1 1 Tucker's Black. Comm. App. 310, 311.
2 Article 6.
3 The Federalist, No. 44 ; Rawle on Constitution, ch. 10, p. 13G.
4 Article 9.
220 CONSTITUTION OF THE U. STATES. [bOOK III.
main purpose, for which the power is given to the gen-
eral government, viz. miiformity of the currency ; and
the former might be as well accomplished by local mints
established by the national government, if it should
ever be found inconvenient to send bullion, or old coin
for re-coinage to the central mint.^ Such an event
could scarcely occur, since the common course of
commerce throughout the United States is so rapid
and so free, that bullion can with a very slight ex-
pense be transported from one extremity of the Union
to another. A single mint only has been established,
which has hitherto been found quite adequate to all our
wants. The truth is, that the prohibition had a higher
motive, the danger of the circulation of base and spuri-
ous coin connived at for local purposes, or easily ac-
complished by the ingenuity of artificers, where the
coins are very various in value and denominadon, and
issued from so many independent and unaccountable
authorities. This subject has, however, been already
enlarged on in another place.^
^ 1352. The prohibition to "emit bills of credit"
cannot, perhaps, be more forcibly vindicated, than by
quoUng the glowing language of the Federalist, a lan-
guage justified by that of almost every contemporary
writer, and attested in its truth by facts, from which the
mind involuntarily turns away at once with disgust and
indignation. "This prohibition," says the Federalist,
"must give pleasure to every citizen in proportion to
his love of justice, and his knowledge of the true springs
of public prosperity. The loss, which America has
sustained since the peace from the pestilent effects of
1 The Federalist, No. 44.
2 1 Tuck. Black. Coinm. App. 31 1 , 312 ; Id. 2G1. Ante, Vol. 3, p. 16 to 20.
CH. XXXIII.] PROHIBITIONS PAPER MONEY. 221
paper money on the necessary confidence between
man and man ; on the necessary confidence in the
public councils ; on the industry and morals of the
people ; and on the character of republican govern-
ment, constitutes an enormous debt against the states,
chargeable with this unadvised measure, which must
long remain unsatisfied ; or rather an accumulation of
guilt, which can be expiated no otherwise, than by a
voluntary sacrifice on the altar of justice of the power,
which has been the instrument of it. In addition to
these persuasive considerations, it may be observed,
that the same reasons, which show the necessity of
denying to the states the power of regulating coin,
prove with equal force, that they ought not to be at
liberty to substitute a paper medium, instead of coin.
Had every state a right to regulate the value of its coin,
there might be as many different currencies, as states ;
and thus the intercourse among them would be imped-
ed. Retrospective alterations in its value might be
made ; and thus the citizens of other states be injured,
and animosides be kindled among the states them-
selves. The subjects of foreign powers might suffer
from the same cause ; and hence the Union be discred-
ited and embroiled by the indiscretion of a single mem-
ber. No one of these mischiefs is less incident to a
power in the states to emit paper money, than to coin
gold or silver." ^
^ 1353. The evils attendant upon the issue of paper
money by the states after the peace of 1783, here spoken
of, are equally applicable, and perhaps apply with even
1 The Federalist, No. 44 ; 2 Elliot's Debates, 83. — See in Mr. Web-
ster's Speeches on the Bank of United States, in Senate, 'ioth and 2Sth
of May, 1832, some cogent remarks on the same subject. See also
Mr. Madison's Letter to Mr. C. J. Ingersoll, 2d of February, 1811.
222 CONSTITUTION OF THE U. STATES. [bOOK III.
increased force to the paper issues of the states and the
Union during the revolutionary war. Public, as well
as private credit, was utterly prostrated.^ The fortunes
of many individuals were destroyed ; and those of all
persons were greatly impaired by the rapid and unpar-
alleled depreciation of the paper currency during this pe-
riod. In truth, the history of the paper currency, which
during the revolution was issued by congress alone, is
full of melancholy instruction. It is at once humiliating
to our pride, and disreputable to our national justice.
Congress at an early period (November, 1775,) direct-
ed an emission of bills of credit to the amount of three
millions of dollars ; and declared on the face of them,
that " this bill entitles the bearer to receive Span-
ish milled dollars, or the value thereof in gold or silver,
according to a resolution of congress, passed at Phila-
delphia, November 29th, 1775." And they apportion-
ed a tax of three millions on the states, in order to pay
these bills, to be raised by the states according to their
quotas at future designated periods. The bills w^ere
directed to be receivable in payment of the taxes ; and
the thirteen colonies were pledged for their redemption.*
Other emissions were subsequently made. The de-
preciation was a natural, and indeed a necessary con-
sequence of the fact, that there was no fund to redeem
them. Congress endeavoured to give them additional
credit by declaring, that they ought to be a tender in
payment of all private and public debts ; and that a
refusal to receive the tender ought to be an extinguish-
ment of the debt, and recommending the states to pass
such tender laws. They went even farther, and
^ See Sturgis v. Croivninshield, 4 Wheat. R. 204, 205.
2 1 Journal of Congress, 1775, p. 186, 280, 304.
CH. XXXIII.] PROHIBITIONS PAPER MONEY. 223
thought proper to declare, that whoever should refuse
to receive this paper in exchange for any property, as
gold and silver, should be deemed " an enemy to the lib-
erties of these United States.'' ^ This course of vio-
lence and terror, so far from aiding the circulation of
the paper, led on to still farther depreciation. New
issues continued to be made, until in September, 1779,
the whole emission exceeded one hundred and sixty
millions of dollars. At this time congress thought it
necessary to declare, that the issues on no account
should exceed two hundred millions ; and still held out
to the public the delusive hope of an ultimate redemp-
tion of the whole at par. They indignantly repelled
the idea, in a circular address, that there could be any
violation of the public faith, pledged for their redemp-
tion ; or that there did not exist ample funds to redeem
them. They indulged in still more extraordinary de-
lusions, and ventured to recommend paper money, as
of peculiar value. " Let it be remembered," said they,
" that paper money is the only kind of money, which
cannot make to itself wings and fly away." ^
^ 1354. The states still continued to fail in comply-
ing with the requisitions of congress to pay taxes ; and
congress, notwithstanding their solemn declaration to
the contrary, increased the issue of paper money, until
it amounted to the enormous sum of upwards of -three
hundred millions.^ The idea was then abandoned of
1 2 Journal of Congress, 11th January, 1776, p. 21 ; 14tli January,
1777 ; 3 Journal of Congress, p. 19, 20; 2Pitk. Hist. ch. 16, p. 155, 156.
2 See 4 Journal of Congress, 9th Dec. 1778, p. 742, and 5 Journal of
Congress, 13th Sept. 1779, p. 341 to 353; 2 Pitk. Hist. ch. 16, p. 156, 157.
3 In the American AlmanriC for 1830, p. 183, the aggregate amount
is given at 357,000,000 of the old emission, and 2,000,000 of the new
emission ; upon which the writer adds, " there was an average deprecia-
tion of two thirds of its original value." Mr. Jeiferson has given an in-
224 CONSTITUTION OF THE U. STATES. [bOOK III.
any redemption at par. In March, 1780, the states
were required to bring in the bills at forty for one ;
and new bills were then to be issued in heu of them,
bearing an interest of five per cent., redeemable in six
years, to be issued on the credit of the individual states,
and guaranteed by the United States.^ This new
scheme of finance was equally unavailing. Few of the
old bills were brought in ; and of course few of the new
were issued. At last the continental bills became of
so litde value, that they ceased to circulate ; and in the
course of the year 1780, they quietly died in the hands
of their possessors.^ Thus were redeemed the solemn
pledges of the national government!^ Thus, was a
paper currency, which was declared to be equal to gold
and silver, suffered to perish in the hands of persons
compelled to take it ; and the very enormity of the
teresting account of the history of paper money during the revolution,
in an article written for the Encyclopedie Methodique. 1 Jefferson's
Corresp. 398, 401, 411, 412.
1 6 Journal of Convention, 18th March, 1780, p. 45 to 48.
2 2 Pitkin's Hist. ch. IG, p. 15G, 157 ; 1 Jefferson's Corresp. 401, 402,
411,412.
3 The twelfth article of the confederation declares, " that all bills of
credit emitted, &c. by or under the authority of congress, &c. shall be
deemed and considered, as a charge against the United States, for pay-
ment and satisfaction whereof the said United States and the public
faith are hereby solemnly pledged." When was tliis pledge redeemed ?
The act of congress of 1790, ch. GI, for the liquidation of tiie public
debt, directs bills of credit to be estimated at the rate of one hundred
dollars for one dollar in specie. In Mr. Secretary Hamilton's Report on
the public debt and credit in January, 1790, the unliquidated part of the
public debt, consisting chiefly of continental bills of credit, was estimat-
ed at two millions of dollars. What was the nominal amount of the bills of
credit, which this sum of two millions was designed to cover at its specie
value, does not appear in the Report. But in the debates in congress
upon the bill founded on it, it was asserted, that it was calculated, that
there were about 78 or 80 millions of paper money then outstanding,
valued at a depreciation of 40 for 1. 3 Lloyd's Deb, 282, 283, 288.
CH. XXXIIJ.] PROHIBITIONS PAPER MONEY. 225
wrong made the ground of an abandonment of every
attempt to redress it!
§ 1355. Without doubt the melancholy shades of
this picture were deepened by the urgent distresses of
the revolutionary war, and the reluctance of the states
to perform their proper duty. And some apology, if
not some justification of the proceedings, may be found
in the eventful transacdons and suflerings of those
times. But Jhe history of paper money, without any
adequate funds pledged to redeem it, and resting merely
upon the pledge of the national faith, has been in all
ages and in all nadons the same. It has constantly
become more and more depreciated ; and in some in-
stances has ceased from this cause to have any circu-
lation whatsoever, whether issued by the irresistible
edict of a despot, or by the more alluring order of a
republican congress. There is an abundance of illus-
trative facts scattered over the history of those of the
American colonies, who ventured upon this pernicious
scheme of raising money to supply the public wants,
during their subjection to the British crown ; and in the
several states, from the declaration of independence
down to the present times. Even the United States,
with almost inexhaustible resources, and with a popula-
tion of 9,000,000 of inhabitants, exhibited during the
late war with Great-Britain the humiliating spectacle of
treasury notes, issued and payable in a year, remaining
unredeemed, and sunk by depreciation to about half of
their nominal value !
^ 1356. It has been stated by a very intelligent his-
torian, that the first case of any issue of bills of credit
in any of the American colonies, as a subsdtute for
money, was by Massachusetts to pay the soldiers, who
returned unexpectedly from an unsuccessful expedition
VOL. III. 29
226 COJVSTITUTION OF THE U. STATES. [bOOK III.
against Canada, in 1690. The debt, thus due to the
soldiers, was paid by paper notes from two shillings to
ten pounds denomination, which notes were to be re-
ceived for payment of the tax, which was to be levied,
and all other payments into the treasury.^ It is added,
that they had better credit than King James's leather
money in Ireland about the same time. But the notes
could not command money, nor any commodides at
money price.^ Being of small amount, they were soon
absorbed in the discharge of taxes. At subsequent
periods the government resorted to similar expedients.
In 1714, there being a cry of a scarcity of money, the
government caused i)50,000 to .be issued in bills of
credit, and in 1716, £100,000 to be lent to the inhabi-
tants for a limited period, upon lands mortgaged by
them, as security, and in the mean time to pass as
money .^ These bills were receivable into the treasury
in discharge of taxes, and also of the mortgage debts so
contracted. Other bills w^ere afterwards issued ; and,
indeed, we are informed, that, for about forty years, the
currency of the province was in much the same state, as
if i)l 00,000 sterling had been stamped on pieces of leath-
er or paper, of various denominations, and declared to
be the money of the government, receivable in payment
of taxes, and in discharge of private debts.^ The con-
sequence was a A^ery great depreciation, so that an
ounce of silver, which, in 1 702, was worth six shillings
and eight pence, was, in 1749, equal to fifty shillings
of this paper currency.^ It seems, that all the other
1 I Hutch. Hist. ch. :3, p. 402. 2 ibid.
3 1 Hutch. Hist. ch. 3, p. 403, note; 2 Hutch. Hist. 208, 245, and
note; 1(1.380,381,403,404.
4 1 Hutch. Hist. ch. 3, p. 402, 403, and note ibid.
5 Ibid. — Hutchinson says, that, in 1747, the currency had sunk to
sixty shillings for an ounce of silver. 2 Hutch. Hist. 438.
CH. XXXIII.] PROHIBITIONS PAPER MONKV. 227
colonies, except Nova Scotia, at different times and lor
various purposes, authorized the issue oi" paper money. ^
There was a uniform tendency to depreciation,
wherever it was persisted in.^
^ 1357. It would seem to be obvious, that, as the
states are expressly prohibited from coining money,
the prohibition would be wholly ineffectual, if they
might create a paper currency, and circulate it as
money. But, as it might become necessary for the
states to borrow money, the prohibition could not be
intended to prevent such an exercise of power, on
giving 10 the lender a certificate of the amount ]}or-
rowed, and a promise to repay it.
^ 1358. What, then, is the true meaning of the phrase
" bills of credit " in the consUtution ? In its enlarged,
and perhaps in its literal sense, it may comprehend any
instrument, by which a state engages to pay money at
a future day (and of course, for which it obtains a pres-
ent credit ;) and thus it would include a certificate given
for money borrowed. But the language of the consti-
tution itself, and the mischief to be prevented, which we
know from the history of our country, equally limit the
interpretation of the terms. The word " emit " is never
employed in describing those contracts, by which a state
binds itself to pay money at a future day for services
actually received, or for money borrowed for present
use. Nor are instruments, executed for such purposes,
in common language denominated " bills of credit." To
emit bills of credit conveys to the mind the idea of
issuing paper, intended to circulate through the com-
munity for its ordinary purposes, as money, which pa-
per is redeemable at a future day. This is the sense,
1 1 Hutch. Hist. ch. 3, p. 402 403, and note ibid.
2 4Peters'sSup. Ct.R.435.
228 CONSTITUTION OF THE U. STATES. [bOOK III.
in which the terms of the constitution have been gen-
erally understood.^ The phrase (as we have seen)
was well known, and generally used to indicate the
paper currency, issued by the states during their colo-
nial dependence. Daring the war of our revolution
the paper currency issued by congress was constantly
denominated, in the acts of that body, bills of credit ;
and the like appellation was applied to similar currency
issued by the states. The phrase had thus acquired a
determinate and appropriate meaning. At the time of
the adoption of the constitution, bills of credit were
universally understood to signify a paper medium in-
tended to circulate between individuals, and between
government and individuals, for the ordinary purposes
of society. Such a medium has always been hable to
considerable fluctuation. Its value is continually chang-
ing ; and these changes, often great and sudden, expose
individuals to immense losses, are the sources of ruin-
ous speculadons, and destroy all proper confidence
between man and man.^ In no country, more than our
own, had these truths been felt in all their force. In
none had more intense suffering, or more wide-spread-
ing ruin accompanied the system. It was, therefore,
the object of the prohibition to cut up the whole mis-
chief by the roots, because it had been deeply felt
throughout all the states, and had deeply affected the
prosperity of all. The object of the prohibition was not
to prohibit the thing, when it bore a particular name ;
but to prohibit the thing, whatever form or name it might
assume. If the words are not merely empty sounds,
the prohibition must comprehend the emission of any
paper medium by a state government for the purposes
1 Craig V. State o/Missuuri, 4 Peters's Sup. Ct. R. 410, 432.
2 Craig \. State of Missouri, 4 Peters's Sup. Ct. R. 432, 441, 442.
CH. XXXIII.] PROHIBITIONS PAPER MONEY. 229
of common circulation.^ It would be preposterous to
suppose, that the constitution meant solemnly to pro-
hibit an issue under one denomination, leaving the pow-
er com.plete to issue the same thing under another. It
can never be seriously contended, that the constitution
means to prohibit names, and not things ; to deal with
shadows, and to leave substances. What would be the
consequence of such a construction ? That a very im-
portant act, big with great and ruinous mischief, and on
that account forbidden by words the most appropriate
for its description, might yet be performed by the sub-
stitution of a name. That the constitution, even in one
of its vital provisions, might be openly evaded by giv-
ing a new name to an old thing. Call the thing a bill
of credit, and it is prohibited. Call the same thing a
certificate, and it is constitutional.^
^ 1359. But it has been contended recently, that a
bill of credit, in the sense of the constitution, must be
such a one, as is, by the law of the state, made a legal
tender. But the constitution itself furnishes no counte-
nance to this distinction. The prohibition is general ;
it extends to all bills of credit, not to bills of a particu-
lar description. And surely no one in such a case is
at liberty to interpose a restriction, which the words
neither require, nor justify. Such a construction is the
less admissible, because there is in the same clause
1 Craig V. State of Missouri, 4 Peters's Sup. Ct. R. 432, 441, 442.
2 Id. 432, 433, 441, 442, 443. — An act of parliament was passed, (24
Geo. 2, ch. 53,) regiJating- and restraining the issues of paper money
and bills of credit in the New-England colonies, in which the language
used demonstrates, that bills of credit was a phrase constantly used and
understood, as equivalent to paper money. The prohibitory clauses for-
bid the issue of" any paper bills, or bills of credit of any kind, or de-
nomination wiiatsoever," &c., and constantly speak of " paper bills or
bills of credit," as equivalents. See Deenng v. Parker, 4 Dall (July
1760.) p. xxiii.
230 CONSTITUTION OF THE U. STATES. [bOOK III.
an express and substantive prohibition of the enact-
ment of tender laws. If, therefore, the construction were
admissible, the constitution would be chargeable with the
folly of providing against the emission of bills of credit,
which could not, in consequence of another prohibition,
have any legal existence. The constitution considers
the emission of bills of credit, and the enactment of
tender laws, as distinct operations, independent of each
other, w^hich may be frequently performed. Both are
forbidden. To sustain the one, because it is not also
the other ; to say, that bills of credit may be emitted,
if they are not made a tender in payment of debts, is,
in effect, to expunge that distinct, independent prohibi-
tion, and to read the clause, as if it had been entirely
omitted.^ No principle of interpretation can justify
such a course.
^ 1360. The history of paper money in the Ameri-
can colonies and states is often referred to for the
purpose of showing, that one of its great mischiefs was
its being made a legal tender in tl:i,e discharge of debts ;
and hence the conclusion is attempted to be adduced,
that the w^ords of the consdtudon may be restrained to
this particular intent. But, if it w ere true, that the evils
of paper money resulted solely from its being made a
tender, it w^ould be wholly unjustifiable on this account
to narrow down the words of the constitution, upon a
mere conjecture of intent, not derivable from those
words. A particular evil may have induced a legisla-
ture to enact a law ; but no one would imagine, that its
language, if general, ought to be confined to that single
case. The leading motive for a constitutional provision
may have been a particular mischief; but it may yet
have been intended to cut down all others of a like na-
1 Craig V. Stale of Missouri, 4 Peters's Sup. Ct. R. 433, 434.
CH. XXXIII.] PROHIBITIONS PAPER MOXEY. 231
ture, leading more or less directly to the same gen-
eral injury to the country. That the making of bills of
credit a tender was the most pernicious of their char-
acteristics, will not authorize us to convert a general
prohibition into a particular one.^
^ 1361. But the argument itself is not borne out
by the facts. The history of our country does not
prove, that it was an essential quality of bills of cred-
it, that they should be a tender in payment of debts ;
or that this was the only mischief resulting from them.
Bills of credit were often issued by the colonies,
and by the several states afterwards, which were not
made a legal tender ; but were made current, and sim-
ply receivable in discharge of taxes and other dues to
the public.^ None of the bills of credit, issued by con-
gress during the w^hole period of the revolution, were
made a legal tender ; and indeed it is questionable, if
that body possessed the constitutional authority to make
them such. At all events they never did attempt it ;
but recommended, (as has been seen,) that the states
should make them a tender.^ The act of parliament
1 Craig V. State of Missouri, 4 Peters's Sup. Ct. R. 433, 434.
2 The bills of credit issued by Massachusetts in 1()90 (the first ever
issued ill any colony) were in the following- form : " No. — , JOs, This
indented bill often siiilling-s, due from the Massachusetts Colony to the
possessor, shall be in value equal to money, and shall be accordingly
accepted by the treasurer, and receivers subordinate to him, in all pub-
lic payments, and for any stock at any time in the treasury,Boston, in JNevv-
Enoland,Dec. the 10th, 1()90. By order of the General Court: Peter Town-
send, Adam Winthrop, Tim. Thornton, Committee." So, that it was not,
in any sense, a tender, except in discharge of public debts. 3 Mass.
Hist. Collections, (2d series,) p. 2()0, 2G1. The bills of credit of Con-
necticut, passed before the revolution, were of the same general char-
acter and operation. They were not made a tender in payment of pri-
vate debts. The emission of them was begun in 1709, and continued,
at least, for nearly a half century. The acts, authorizing the emission,
generally contained a clause for raising a tax to redeem them.
3 Craig V. State of Missouri, 4 Peters's Sup. Ct. R. 434, 435, 43C, 442, 443.
232 CONSTITUTION OF THE U. STATES. [bOOK III.
of 24 Geo. 2, ch. 53, is equally strong on this point. It
prohibited any of the New-England colonies from issu-
ing any new paper bills, or " bills of credit," except
upon the emergencies pointed out in the act ; and re-
quired those colonies to call in, and redeem all the out-
standing bills. It then proceeded to declare, that after
September, 1751, no "paper currency or bills of cred-
it," issued, or created in any of those colonies, should
be a legal tender, with a proviso, that nothing therein
contained should be construed to extend to make any
of the bills, then subsisting, a legal tender.
^ 1362. Another suggestion has been made ; that
paper currency, which has a fund assigned for its re-
demption by the state, which authorizes its issue,
does not constitudonally fall within the description of
" bills of credit." The latter words (it is said) appro-
priately import bills drawn on credit merely, and not
bottomed upon any real or substantial fund for their
redemption ; and there is a material, and w^ell known
distinction between a bill drawn upon a fund, and one
drawn upon credit only.^ In confirmation of this rea-
soning, it has been said, that the emissions of paper
money by the states, previous to the adoption of the
constitution, were, properly speaking, bills of credit,
not being bottomed upon any fund constituted for their
redemption, but resting solely, for that purpose, upon
the credit of the state issuing the same. But this ar-
gument has been deemed unsatisfactory in its own
nature, and not sustained by historical facts. All bills
issued by a state, whether special funds are assigned
for the redemption of them or not, are in feet issued on
the credit of the state. If these funds should from any
cause fail, the bills would be still payable by the state.
1 Craig V. State of Missouri, 4 Peters's Sup. Ct. R. 447.
CH. XXXiri.] PROHIBITIONS BILLS OF CREDIT. ^33
If these funds should be applied to other purposes, (as
they may be by the state,) or withdrawn from the
reach of the creditor, the state is not less liable for their
payment. No exclusive credit is given, in any such
case, to the fund. If a bill or check is drawn on a fund
by a private person, it is drawn also on his credit, and
if the bill is refused payment out of the fund, the
drawer is still personally responsible. Congress has?
under the constitution, power to borrow money on the
credit of the United States. But it would not be less
borrowing on that credit, that funds should be pledged
for the re-payment of the loan ; such, for instance, as
the revenue from duties, or the proceeds of the public
lands. If these funds should fail, or be diverted, the
lender would still trust to the credit of the government.
But, in point of fact, the bills of credit, issued by the
colonies and states, were sometimes with a direct or
implied pledge of funds for their redemption. The
constitution itself points out no distinction between
bills of the one sort or the other. And the act of 24
Geo. 2d. ch. 53 requires, that wdien bills of credit are
issued by the colonies in the emergencies therein stat-
ed, an ample and sufficient fund shall, by the acts au-
thorizing the issue, be established for the discharge of
the same within five years at the farthest. So, that
there is positive evidence, that the phrase, " bills of
credit," w^as understood in the colonies to apply to all
paper money, whether funds were provided for the re-
payment or not.^
§ 1363. This subject underwent an ample discus-
sion in a late case. The state of Missouri, with a view
to relieve the supposed necessities of the times, au-
1 See 2 Hutch. Hist 208, 381.
VOL. III. 30
234 CONSTITUTION OF THE U. STATES. [bOOK III.
thorized the establishment of certain loan-offices to
loan certain sums to the citizens of that state, for which
the borrowers were to give security by mortgage of
real estate, or personal property, redeemable in a lim-
ited period by instalments. The loans were to be
made in certificates, issued by the auditor and treasur-
er of the state, of various denominations, between ten
dollars and fifty cents, all of which, on their face, pur-
ported to be receivable at the treasury, or any of the
loan offices of the state, in the discharge of taxes or
debts due to the state for the sum of — with interest
for the same at two per centum per annum. These
certificates were also made receivable in payment of all
salt at the salt springs ; and by all public officers, civil
and military, in discharge of their salaries and fees of
office. And it was declared, that the proceeds of the
salt springs, the interest accruing to the state, and all
estates purchased under the same act, and all debts
due to the state, should be constituted a fund for the
redemption of them. The question made was, wheth-
er they were "bills of credit," within the meaning of
the constitution. It was contended, that they were
not ; they were not made a legal tender, nor directed
to pass as money, or currency. They were mere evi-
dences of loans made to the state, for the payment of
which specific and available funds were pledged. They
were merely made receivable in payment of taxes, or
other debts due to the state.
^ 1364. The majority of the Supreme Court were
of opinion, that these certificates Avere bills of credit
within the meaning of the constitution. Though not
called bills of credit, they were so in fact. They were
designed to circulate as currency, the certificates being
to be issued in various denominations, not exceeding
CH. XXXIII.] PROHIBITIONS BILLS OF ('lU.Drr. 2)15
ten dollars, nor less than fifty cents. Under snch cir-
cumstances, it was impossible to doubt their real char-
acter and object, as a paper currency. They were to
be emitted by the government ; and they were to be
gradually withdrawn from circulation by an annual
withdrawal of ten percent. It was wholly unnecessary,
that they should be declared to be a legal tender.
Indeed, so far as regarded the fees and salaries of
public officers, they were so.^ The minority were of
a different opinion, upon various grounds. One was,
that they w^ere properly to be deemed a loan by the
state, and not designed to be a circulating curren-
cy, and not declared to be so by the act. Another
was, that they bore on their face an interest, and for
that reason varied in value every moment of their ex-
istence, which chsquahfied them for the uses and pur-
poses of a circulating medium. Another was, that all
the bills of credit of the revolution contained a promise
to pay, which these certificates did not, but were mere-
ly redeemable in discharge of taxes, &,c. Another
was, that they were not issued upon the mere credit of
the state ; but funds were pledged for their redemp-
tion. Another was, that they were not declared to be
a legal tender. Another was, that their circulation
was not enforced by statutory provisions. No creditor
was under any obligation to receive them. In their na-
ture and character, they were not calculated to produce
any of the evils, which the paper money issued in the
revolution did, and which the constitution intended to
guard against.^
1 Craig \. The Slate of Missouri, 4 Peters's Sap.Ct. R. 410, 425 to 438.
2 Some of these grounds apply equally to some of the "bills of cred-
it," issued by the colonies. In fact, tliese certificates seem to liave dif-
fered in few, if any essential circumstances, from those issued by the
236 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1365. The next prohibition is, that no state shall
" make any thing but gold and silver coin, a tender in
" payment of debts." This clause was manifestly found-
ed in the same general policy, which procured the
adoption of the preceding clause. The history, indeed,
of the various la\vs, which were passed by the states
in their colonial and independent character upon this
subject, is starding at once to our morals, to our patriot-
ism, and to our sense of justice. Not only was paper
money issued, and declared to be a tender in payment of
debts ; but laws of another character, well known un-
der the appellation of tender laws, appraisement laws,
instalment laws, and suspension laws, were from time
to time enacted, w hich prostrated all private credit,
and all private morals. By some of these laws, the
due payment of debts was suspended ; debts were,
in violation of the very terms of the contract, authorized
to be paid by instalments at different periods ; prop-
erty of any sort, however worthless, either real or per-
sonal, might be tendered by the debtor in payment of
his debts ; and the creditor was compelled to take the
Province of Massachusetts in 1714 and 1716, and had the same general
objects in view by tlie srme means, viz. to make temporary loans to the
inhabitants to relieve their wants by an issue of paper money.* The
bills of credit issued by congress in 1760 were payable with interest.
So were the treasury notes issued by congress in the late war with
Great Britain. Yet both circulated and were designed to circulate as
currency. The bills of credit issued by congress in the revolution were
not made a legal tendcr.f It has also been already seen, that the first
bills of credit ever issued in America, in 1()90, contained no promise of
payment by the state, and were simply receivable in discharge of pub-
lic dues.J Mr. Jefferson, in the first volume of his Correspondence,
(p. 401, 402,) has given a succinct history of paper money in America,
especially in the revolution. It is a sad but instructive account.
♦ 1 Hulcli. Ilistoiy, 402, •lO:?, and note ; 2 Ilutcli. History, 208.
t Ante,$i;5(,l.
X 3 Mass. Hist. Collection, (2d8eries,) 260, 201 Ante, § 1353, 13G1. See 4 Mass. Hist. Coll.
(2d series,) 99.
CH. XXXIII.] PROHIBITIONS TENDER. 2^7
property of the debtor, which he might seize on exe-
cution, at an appraisement wholly disproportioRate loits
known valiie.^ Such grievances, and oppressions, and
others of a like nature, were the ordinary results of
legislation during the revolutionary Avar, and the inter-
mediate period down to the formation of the constitu-
tion. They entailed the most enormous evils on the
country ; and introduced a system of fraud, chicanery,
and profligacy, which destroyed all private confidence,
and all industry and enterprise.^
§ 1366. It is manifest, that all these prohibitory
clauses, as to coining money, emitting' bills of credit,
and tendering any thing, but gold and silver, in payment
of debts, are founded upon the same general policy,
and,result from the same general considerations. The
policy is, to provide a fixed and uniform value through-
out the United States, by which commercial and other
deahngs of the citizens, as well as the monied transac-
tions of the government, might be regulated. For it
may Avell be asked, w hy vest in congress the power to
establish a uniform standard of value, if the states
might use the same means, and thus defeat the uni-
formity of the standard, and consequently the standard
itself? And why establish a standard at all for the
government of the various contracts, which might be
entered into, if those contracts might afterwards be
discharged by a different standard, or by that, which is
not money, under the authority of state tender laws? All
these prohibitions are, therefore, entirely homogeneous,
and are essential to the estabhshment of a uniform stan-
dard of value in the formation and discharge of contracts.
For this reason, as well as others derived from the
1 3 Elliot's Debates, 144.
2 See Sturgis v. Crowniiishield, 4 Wheat. R. 204.
238 CONSTITUTION OF THE U. STATES. [bOOK III.
phraseology employed, the prohibition of state tender
laws will admit of no construction confining ■ it to state
laws, which have a retrospective operation.^ Accord-
ingly, it has been uniformly held, that the prohibition
applies to all future laws on the subject of tender ; and
therefore no state legislature can provide, that future
pecuniary contracts may be discharged by any thing,
but gold and silver coin.^
^ 1367. The next prohibition is, that no state shall
"pass any bill of attainder, ex post facto law, or law
" impairing the obligation of contracts." The two form-
er require no commentary, beyond what has been al-
ready offered, under a similar prohibitory clause applied
to the government of the United States. The same
policy and principles apply to each.^ It would have
been utterly useless, if not absurd, to deny a power to
the Union, which might at the same time be applied
by the states, to purposes equally mischievous, and ty-
rannical ; and which might, when applied by the states,
be for the very purpose of subverting the Union, Be-
fore the constitution of the United States was adopted,
every state, unless prohibited by its own constitution,
might pass a bill of attainder, or ex post facto law, as a
general result of its sovereign legislative power. And
such a prohibition would not be implied from a consti-
tutional provision, that the legislative, executive, and
judiciary departments shall be separate, and distinct ;
that crimes shall be tried in the county, where they are
committed ; or that the trial by jury shall remain invio-
1 Ogden V. Saunders, 12 Wheat. R. 2G5, per Washington J.
2 Ogden V. Saunders, 12 Wlieat. R. 2G5, 2G9, 288, 289, 305, 306, 328,
335, 336, :«!).
3 See The Federalist, No. 44, 84.
CH. XXXIII.] PROHIBITIONS ATTAINDER. 239
Jate. The power to pass such laws would still remain,
at least so far as respects crimes committed without
the state.^ During the revolutionary war, bills of at-
tainder, and ex post facto acts of confiscation, were
passed to a wide extent ; and the evils resulting there-
from were supposed, in times of more cool rellection,
to have far outweighed any imagined good.
• 1 Cooptr V. Telfair, 4 Dall. R. 14 ; S. C. 1 Peters's Cond. R. 211.
240 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XXXIV.
PROHIBITIONS OX THE STATES. IMPAIRING
CONTRACTS.
^ 1368. The remaining clause, as to impairing the
obligation of contracts, will require a more full and de-
liberate examination. The Federalist treats this sub-
ject in the following brief, and general manner. "Bills
of attainder, ex post facto law^s, and laws impairing
the obligation of contracts are contrary to the first
principles of the social compact, and to every principle
of sound legislation. The two former are expressly
prohibited by the declarations prefixed to some of the
state constitutions ; and all of them are prohibited , by
the spirit and scope of their fundamental character.
Our own experience has taught us, nevertheless, that
additional fences against these dangers ought not to
be omitted. Very properly, therefore, have the con-
vention added this constitutional bulwark, in favour of
personal security, and private rights, Slc, The sober
people of America are weary of the fluctuating policy,
which has directed the public councils. They have
seen with regret and indignation, that sudden changes
and legislative interferences in cases affecting personal
rights became jobs in the hands of enterprising and
influential speculators, and snares to the more industri-
ous and less informed part of the community. They
have seen, too, that one legislative interference is but
the first hnk in a long chain of repetitions, every sub-
sequent interference being naturally provoked by the
eff'ects of the preceding. They very rightly infer, there-
fore, that some thorough reform is wanting, which will
CH. XXXIV.] PROHIBITIONS CONTRACTS. 241
banish speculations on public measures, inspire a gene-
ral prudence and industry, and give a regular course
to the business of society."^
§ 1369. With these remarks the subject is dismiss-
ed. And yet, perhaps, there is not a single clause of
the constitution, which has given rise to more acute
and vehement controversy ; and the nature and extent
of whose prohibitory force has called forth more inge-
nious speculation, and more animated juridical dis-
cussion.^ What is a contract ? What is the obligation
of a contract? What is impairing a contract? To
what classes of laws does the prohibition apply ? To
what extent does it reach, so as to control prospec-
tive legislation on the subject of contracts ? These
and many other questions, of no small nicety and in-
tricacy, have vexed the legislative halls, as well as the
judicial tribunals, with an uncounted variety and fre-
quency of litigation and speculation.
§ 1370. In the first place, what is to be deemed a
contract, in the constitutional sense of this clause ? A
contract is an agreement to do, or not to do, a particular
thing ;^ or (as was said on another occasion) a contract is
a compact between two or more persons.^ A contract
is either executory, or executed. An executory con-
tract is one, in which a party binds himself to do, or
not to do a particular thing. An executed contract is
one, in which the object of the contract is performed.
This differs in nothing from a grant ;^ for a contract
1 Tlie Federalist, No. 44.
2 1 Kent's Comm. Lect. 19, p. 387.
3 Sturgis V. Crownin shield, 4 Wheaton's R. 197. See also Green v.
Biddlc,8 Wheat. R. 9-2; Ogden v. Saunders. 12 Wheat R. 256, 297,
302, 3H), 335 ; Garden v. Printe, 3 Wash. Cir. Ct. R. 319.
4 Fletcher v. Peck, (5 Cranch, 136; S. C. 2 Peters's Cond. R. 321.
5 Id. and 2 Black. Comm. 443.
VOL. III. 31
242 CONSTITUTION OF THE U. STATES. [eOOK III.
executed conveys a chose in possession ; a contract exe-
cutory conveys only a chose in action.^ Since, then, a
grant is in fact acontract executed, the obhgation of which
continues ; and since the constitution uses the gene-
ral term, contract, without distinguishing between those,
which are executory and diose, which are executed ; it
must be construed to comprehend the former, as well
as the latter. A state law, therefore, annuUing conveyan-
ces between individuals, and declaring, that the grantors
should stand seized of their former estates, notwith-
standing those grants, would be as repugnant to the
constitution, as a state law discharging the vendors
from the obligation of executing their contracts of sale
by conveyances. It would be strange, indeed, if a con-
tract to convey were secured by the constitution, while
an absolute conveyance remained unprotected.^ That
the contract, while executory, was obhgatory ; but when
executed, might be avoided.
§ 1371. Contracts, too, are express, or implied.
Express contracts are, where the terms of the agree-
ment are openly avowed, and uttered at the time of the
making of it. Imphed contracts are such, as reason
and justice dictate from the nature of the transaction,
and which therefore the law presumes, that every man
undertakes to perform.^ The constitution makes no
distinction between the one class of contracts and the
other. It then equally embraces, and applies to both.
Indeed, as by far the largest class of contracts in civil
society, in the ordinary transactions of life, are implied,
there would be very litde object in securing the inviola-
1 2 Black. Comm. 443.
2 Fldchcr V. Peck, G Cranch's R. 137; S. C.SPcters's Cond. R. 321,
322.
^ 2 Black. Comm. 443.
CH. XXXIV.] PROHIBITIONS COJVTRACTS. 213
bility of express contracts, if those, Avliich are implied,
might be impaired by state legislation. TJie constitu-
tion is not chargeable with such folly, or inconsistency.
Every grant in its own nature amounts to an extin-
guishment of the right of the grantor, and implies a
contract not to re-assert it. A party is, therefore, al-
ways estopped by his own grant.^ How absurd would
it be to provide, that an express covenant by liim,
as a muniment attendant upon the estate, should bind
him for ever, because executory, and resting in action;
and yet, tliat he might re-assert his title to the estate,
and dispossess his grantee, because there was only an
implied covenant not to re-assert it.
§ 1372. In the next place, what is the obligation of
a contract? It would seem difficult to substitute words
more intelligible, or less liable to misconstruction, than
these. And yet they have given rise to much acute
disquisition, as to their real meaning in the constitution.
It has been said, that right and obligation are correla-
tive terms. Whatever I, by my contract, give another
a right to require of me, I, by that act, lay myself under
an obligation to yield or bestow. The obligation of
every contract, then, vs ill consist of that right, or power
over my will or actions, which I, by my contract, con-
fer on another. And that right and power w^ill be found
to be measured, neither by moral law alone, nor by
universal law^ alone, nor by the laws of society alone ;
but by a combination of the three ; an operation, in
which the moral law is explained, and applied by the
law of nature, and both modified and adapted to the
exigencies of society by positive law. In an advanced
i Fletcher v. Peck, G Cranch\s R. 137: S. C. 2 Peters's Cond. R.321,
3-22 ; Dartmouth Collftre. v. li'oodward, 4 Wheat- R. G57, 658, C^^S, m\
244 CONSTITUTION OF THE U. STATES. [bOOK III.
State of society, all contracts of men receive a relative,
and not a positive interpretation. The state construes
them, the state applies them, the state controls them,
and the state decides, how far the social exercise of the
rights, they give over each other, can be justly asserted.*
Asain, it has been said, that the constitution distin-
guishes between a contract, and the obligation of a
contract. The latter is the law, which binds the parties
to perform their agreement. The law, then, which has
this binding obligation, must govern and control the
contract in every shape, in which it is intended to bear
upon it.^ Again, it has been said, that the obligation of
a contract consists in the power and efficacy of the
law, which applies to, and enforces performance of it,
or an equivalent for non-performance. The obligation
does not inhere, and subsist in the contract itself, pro-
prio vigore, but in the law applicable to the contract.^
And again, it has been said, that a contract is an agree-
ment of the parties ; and if it be not illegal, it binds
them to the extent of their stipulations. Thus, if a
party contracts to pay a certain sum on a certain day,
the contract binds him to perform it on that day, and
this is its obligation.^
§ 1373. Without attempting to enter into a minute
examination of these various definitions, and explana-
tions of the obhgation of contracts, or of the reason-
ing, by which they are supported and illustrated ; there
are some considerations, which are pre -supposed by all
1 Per Johnson J. in Ogden v. Saunders, 12 Wheat. R. 281, 282.
2 Id. Washington J., p. 257, 258,259; Thompson J., p. 300, 302 ; Trim-
ble J., p. 31G.
3 Id.TrimblcT., p. 317, 318.
4 Id. Marsliall C, J., p. 335, 314 to 34G ; Sturgis v. Crowninshieldy
4 Wheat. R. 197 ; Flelchcr v. Peck, (3 Cranch's R. 137.
CH. XXXIV.] PROIIIBITIOXS CONTRACTS. " 245
of them; and others, which enter into some, and are
excluded in others.
§ 1374. It seems agreed, that, when the obligation o
contracts is spoken of in the constitution, we are to
understand, not the mere moral, but the legal obligation
of contracts. The moral obligation of contracts is, so
far as human society is concerned, of an imperfect kind,
which the parties are left free to obey or not, as they
please. It is addressed to the conscience of the parties,
under the solemn admonitions of accountability to the
Supreme Being. No human lawgiver can either im-,
pair, or reach it. The constitution has not in contem-
plation any such obhgations, but such only, as might be
impaired by a state, if not prohibited.^ It is the civil
obligation of contracts, which it is designed to reach,
that is, the obligation, which is recognised by, and re-
sults from the law of the state, in which it is made.
If, therefore, a contract, when made, is by the law of
the place declared to be illegal, or deemed to be a
nulUty, or a nude pact, it has no civil obligadon, because
the law in such cases forbids its having any binding
efficacy, or force. It confers no legal right on the one
party, and no correspondent legal duty on the other.
There is no means allowed, or recognised to enforce it;
for the maxim is, ex nudo pacto non oritur actio. But
when it does not fall within the predicament of being
either illegal, or void, its obligatory force is coextensive
with its stipulations.
§ 1375. Nor is this obligatory force so much the re-
sult of the positive declarations of the municipal law, as
of the general principles of natural, or (as it is some-
1 Ogden V. Saunders, 12 Wlicaton's R. 257, 258, 280, 281, 300, 31G to
318,337,338.
246 CONSTITUTION OF THE U. STATES. [bOOK III.
times called) universal law. In a state of nature, inde-
pendent of the obligations of positive law, contracts
may be formed, and their obligatory force be complete.^
Between independent nations, treaties and compacts
are formed, which are deemed universally obligatory ;
and yet in no just sense can they be deemed depen-
dent on municipal law.^ Nay, there may exist (ab-
stractly speaking) a perfect obligation in contracts,
where there is no known and adequate means to en-
force them. As, for instance, between independent
nations, where their relative strength and power pre-
clude the possibility, on the side of the weaker party,
of enforcing them. So in the same government, where
a contract is made by a state with one of its own citi-
zens, which yet its laws do not permit to be enforced
by any action or suit. In this predicament are the
United States, who are not suable on any contracts
made by themselves ; but no one doubts, that these are
still obligatory on the United States. Yet their obliga-
tion is not recognised by any positive municipal law in
a great variety of cases. It depends altogether upon
principles of pubUc or universal law. Stil], in these
cases there is a right in the one party to have the con-
tract performed, and a duty on the other side to per-
form it. But, generally speaking, when we speak of
the obligation of a contract, we include in the idea some
known means acknowledged by the municipal law to
enforce it. Where all such means are absolutely de-
nied, the obligation of the contract is understood to be
impaired, though it may not be completely annihilated.
Rights may, indeed, exist without any present adequate
1 Ogden V. Saunders, 12 Wheat. R. 281, 282 ; Id. 344 to 346 ; Id. 350.
2 Ogdeyi V. Saunders, 12 Wheat. R. 280, 281, 344 to 346.
CH. XXXIV.] PROHIBITIONS CONTRACTS. 247
correspondent remedies between private persons.
Thus, a state may refuse to allow imprisonment for
debt; and the debtor may have no property. But
still the riglit of the creditor remains ; and he may en-
force it against the future property of the debtor.^ So
a debtor may die without leaving any known estate, or
w^ithout any known representative. In such cases we
should not say, that the right of the creditor was gone;
but only, that there was nothing, on which it could
presently operate. But suppose an administrator should
be appointed, and property in contingency should fall
in, the right might then be enforced to the extent of
the existing means.
^ 1376. The civil obligation of a contract, then,
though it can never arise, or exist contrary to positive
law, may arise or exist independently of it;^ and it
may be, exist, notwithstanding there may be no present
adequate remedy to enforce it. Wherever the muni-
cipal law recognises an absolute duty to perform a con-
tract, there- the obligation to perform it is complete,
although there may not be a perfect remedy.
§ 1377. But much diversity of opinion has been ex-
hibited upon another point ; how far the existing law
enters into, and forms a part of the contract. It has
been contended by some learned minds, that the mu-
nicipal law of the place, where a contract is made, forms
a part of it, and travels with it, wherever the parties to
it may be found.^ If this were admitted to be true, the
consequence would be, that all the existing laws of a
state, being incorporated into the contract, would con-
^ See Sturgis v. Crowninshidd, 4 Wheat. 200, 201 ; Mason v. Haile,
12 Wheat. R. 370.
- Ogden V. Saunders, 12 Wheat. R. 344 to 346 ; Id. 350.
3 Ogden V. Saunders, 12 Wheat. R. 259, 2G0 ; Id. 297, 298, 302.
248 COJJ'STITUTION OF THE U. STATES. [bOOK III.
stitute a part of its stipulations, so that a legislative re-
peal of such laws would not in any manner affect it.^
Thus, if there existed at the time a statute of limita-
tions, operating on such contracts, or an insolvent act,
under which they might be discharged, no subsequent
repeal of either could vary the rights of the parties, as
to using them, as a bar to a suit upon such contracts.
If, therefore, the legislature should provide by a law,
that all contracts thereafter made should be subject to
the entire control of the legislature, as to their obliga-
tion, validity, and execution, whatever might be their
terms, they would be completely within the legislative
power, and might be impaired, or extinguished by fu-
ture laws ; thus having a complete ex post facto opera-
tion. Nay, if the legislature should pass a law declar-
ing, that all future contracts might be discharged b} a
tender of any thing, or things, besides gold and silver,
there would be great difficulty in affirming them to be
unconstitutional ; since it would become a part of the
stipulations of the contract. And yet it is obvious, that
it would annihilate the whole prohibition of the consti-
tution upon the subject of tender laws.^
^ 1378. It has, therefore, been judicially held by a
majority of the Supreme Court, that such a doctrine is
untenable. Although the law of the place acts upon a
contract, and governs its construcdon, validity, and
obhgadon, it constitutes no part of it. The effect of
such a principle would be a mischievous abridgment of
legislative power over subjects within the proper juris-
diction of states, by arresting their power to repeal, or
modify such laws with respect to existing contracts.^
1 Ogden V. Saunders, 12 Wheat. R. 260, 261, 262, 284, 3:36 to 339.
2 Ogden V. Saunders, 12 Wheat. R. 284, 324, 325,336 to 339.
3 Ogdtn V. Saunders, 12 Wheat. R. 343.
CH. XXXIV.] PROHIBITIONS CONTRACTS. 219
The law necessarily steps in to explain, and construe
the stipulations of parties, but never to supersede, or
vary them. A great mass of human transactions de-
pends upon imphed contracts, upon contracts, not writ-
ten, which grow out of the acts of the parties. In such
cases the parties are supposed to have made those
stipulations, which, as honest, fair, and just men, they
ought to have made. When the law assumes, that the
parties have made these stipulations, it does not vary
their contract, or introduce new terms into it ; but it
declares, that certain acts, unexplained by compact,
impose certain duties, and that the parties had stipu-
lated for their performance. The difference is obvious
between this, and the introduction of a new condidon
into a contract drawn out in writing, in which the par-
ties have expressed every thing, that is to be done by
either.^ So, if there be a written contract, which does
not include every term, which is ordinarily and fairly
to be implied, as accompanying what is stated, the law
performs the office only of expressing, what is thus
tacitly admitted by the parties to be a part of their in-
tention. To such an extent the law acts upon con-
tracts. It performs the office of interpretation. But
this is very different from supposing, that every law,
applicable to the subject matter, as a statute of limita-
tions, or a statute of insolvency, enters into the con-
tract, and becomes a part of the contract. Such a
supposition is neither called for by the terms of the
contract, nor can be fairly presumed to be contem-
plated by the parties, as matters ex contractu. The
parties know, that they must obey the laws ; and that
1 Ogden V. Saunders, 12 Wheat. K. 341, 342.
VOL. III. 32
250 CONSTITUTION OF THE U. STATES. [bOOK III.
the laws act upon their contracts, whatever may be
their intention.^
^ 1379. In the next place, what may properly be
deemed impairing the obligation of contracts in the
sense of the constitution ? It is perfectly clear, that
any law, which enlarges, abridges, or in any manner
changes the intention of the parties, resulting from the
stipulations in the contract, necessarily impairs it. The
manner or degree, in which this change is effected, can
in no respect influence the conclusion; for whether
the law afl'ect the validity, the construction, the dura-
tion, the discharge, or the evidence of the contract, it
impairs its obligation, though it may not do so to the
s^me extent in all the supposed cases.^ Any devia-
tion from its terms by postponing, or accelerating the
period of performance, which it prescribes ; imposing
conditions not expressed in the contract ; or dispensing
with the performance of those, which are a part of the
contract ; however minute or apparently immaterial in
their effect upon it, impair its obligation.^ A fortiori^
a law, which makes the contract wholly invalid, or ex-
tinguishes, or releases it, is a law impairing it.^ Nor is
this all. Although there is a distinction betw^een the
obligation of a contract, and a remedy upon it ; yet if
there are certain remedies existing at the time, when it
is made, all of which are afterwards wholly extinguish-
ed by new laws, so that there remain no means of en-
forcing its obligation, and no redress ; such an aboli-
tion of all remedies, operating in presenti, is also an im-
1 Ogdcn V. Saunders, 12 Wheat. R. 284, 324, 325, 338, 339, 340, 343,
354.
2 Id. 25G ; Id. 327 ; Golden v. Prince, 3 Wash. Cir. V\. 319.
3 Green v. B'lddle, 8 Wheat. R. 1, 84.
4 Slurgis V. Crownimhiddj 4 Wheat. R. 197, 198.
CH. XXXIV.] PROHIBITIONS CONTKACTS. 251
pairing of the obligation of such contract.^ J)Ut (;very
change and modification of the remedy does not in-
volve such a consequence. No one will doubt, that
the legislature may vary the nature and extent of rem-
edies, so always, that some substantive remedy be in
fact left. Nor can it be doubted, that the legislature
may prescribe the times and modes, in which remedies
may be pursued ; and bar suits not brought within such
periods, and not pursued in such modes. Statutes of
limitations are of this nature ; and have never been
supposed to destroy the obligation of contracts, but to
prescribe the times, within which that obligation shall
be enforced by a suit ; and in default to deem it either
satisfied, or abandoned.^ The obligation to perform a
contract is coeval wdth the undertaking to perform it.
It originates wdth the contract itself, and operates ante-
rior to the time of performance. The remedy acts
upon the broken contract, and enforces a pre-existing
obhgation.^ And a state legislature may discharge a
party from imprisonment upon a judgment in a civil
case of contract, without infringing the constitution ; for
this is but a modification of the remedy, and does not
impair the obhgation of the contract.^ So, if a party
should be in gaol, and give a bond for the prison liber-
ties, and to remain a true prisoner, until lawfully dis-
charged, a subsequent discharge by an act of the legis-
lature w^ould not impair the contract ; for it would be a
lawful dischar2;e in the sense of the bond.^
1 Os;den v. Saunders, 12 Wheat. R. 284, 285, 327, 349, 350, 351, 352,
353 ; Slurgis v. Croivninshield, 4 Wheat. R. 200, 201, 207.
2 Sturgis V. Crowninskield, 4 Wlieat. R. 200, 206, 207 ; Mason v.
Haile, 12 Wheat. R. 370 380, 381 ; Ogden v. Saunders, 12 Wheat. R.
262, 263, 349, 350 ; Hawkins v. Barney's Lessee, 5 Peters's Sup. R. 457.
3 Ogden V. Saunders, 12 Wheat. R. 349, 350.
4 Mason v. Haile, 12 Wheat. R. 370. ^ Ibid.
252 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1380. These general considerations naturally con-
duct us to some more difficult inquiries growing out of
them ; and upon which there has been a very great
diversity of judicial opinion. The great object of the
framers of the constitution undoubtedly was, to secure
the inviolability of contracts. This principle was to be
protected in whatever form it might be assailed. No
enumeration was attempted to be made of the modes,
by which contracts might be impaired. It would have
been unwise to have made such an enumeradon, since
it might have been defective ; and the intention was to
prohibit every mode or device for such purpose. The
prohibition was universal.^
^ 1381. The question has arisen, and has been most
elaborately discussed, how far the states may constitu-
tionally pass an insolvent law, which shall discharge
the obligation of contracts. It is not doubted, that the
states may pass insolvent laws, which shall discharge
the person, or operate in the nature of a cessio bonorum,
provided such laws do not discharge, or intermeddle
with the obligation of contracts. Nor is it denied, that
insolvent laws, which discharge the obligation of con-
tracts, made antecedently to their passage, are uncon-
sdtutional.^ But the question is, how far the states
may constitutionally pass insolvent laws, which shall
operate upon, and discharge contracts, which are made
subsequently to their passage. After the most ample
argument it has at length been setded by a majority of
the Supreme Court, that the states may constitutionally
pass such laws operating upon future contracts.
1 Slurgis V. Croivniyishielil, 4 Wheat. R. 100, 200.
2 Sturiris V. Croivninshidd, 4 Wheat. R. 122; Farmers and Mechanics
Bank v. Sinilh, G Wlieat. R. 131 ; Ogden\. Saunders, 12 Wheat. R.213.
CH. XXXIV.] PROHIBITIONS CONTRACTS. 253
§ 1382. The learned judges, who held the affiiTna-
tive, were not all agreed, as to the grounds of their
opinions. But their judgment rests on some one of
the following grounds : (1.) Some of the judges held,
that the law of the place, where a contract is made, not
only regulates, and governs it, but constitutes a part of
the contract itself; and, consequently, that an insolvent
law, which, in the event of insolvency of the party,
authorizes a discharge of the contract is obligatory as a
part the contract. (2.) Others held, that, though the
law of the place formed no part of the contract, yet the
latter derived its whole obligation from that law, and
was controlled by its provisions ; and, consequently,
that its obligadon could extend no further, than the law,
which caused the obhgation ; and if it was subject to be
discharged in case of insolvency, the law so far controll-
ed, and hmited its obligation. (3.) That the connexion
v^dth the other parts of the clause, (bills of attainder and
ex post facto laws,) as they appUed to retrospecdve leg-
islanon, fortified the conclusion, that the intention in this
part was only to prohibit the like legislation. (4.) That
the known history of the country, as to insolvent laws,
and their having constituted a part of the acknowledged
jurisprudence of several of the states for a long period,
forbade the supposition, that under such a general
phrase, as laws impairing the obligation of contracts, insol-
vent laws, in the ordinary administration of justice, could
have been intentionally included. (5.) That, whenev-
er any person enters into a contract, his assent may
be properly inferred to abide by those rules in the ad-
ministration of justice, which belong to the jurispru-
dence of the country of the contract. And, when he is
compelled to pursue his debtor in other states, he is
equally bound to acquiesce in the law of the latter, to
254 CONSTITUTION OF THE U. STATES. [bOOK III.
which he subjects himself. (6.) That the law of the
contract remains the same every where, and will be the
same in every tribunal. But the remedy necessarily
varies, and with it the effect of the constitutional pledge,
which can only have relation to the laws of distributive
justice, known to the policy of each state severally.
These and other auxiliary grounds, which were illus-
trated by a great variety of arguments, which scarcely
admit of abridgment, were deemed satisfactory to the
majority of the court.
^ 1383. The minority of the judges maintained their
opinions upon the following grounds: (1.) That the
words of the clause in the constitution, taken in their
natural and obvious sense, admit of a prospective, as
well as of a retrospective operation. (2.) That an act
of the legislature does not enter into the contract, and be-
come one of the conditions stipulated by the parties ; nor
does it act externally on the agreement, unless it have
the full force of law. (3.) That contracts derive their
obligation from the act of the parties, and not from the
grant of the government. And the right of the gov-
ernment to regulate the manner, in which they shall be
formed, or to prohibit such as may be against the policy
of the state, is entirely consistent with their inviolabih-
ty, after they have been formed. (4.) That the obliga-
tion of a contract is not identified with the means, which
government may furnish to enforce it. And that a pro-
hibition to pass any law impairing it does not imply a
prohibition to vary the remedy. Nor does a power to
vary the remedy imply a power to impair the obliga-
tion derived from the act of the parties. (5.) That the
history of the times justified this interpretation of the
clause. The power of changing the relative situation
of debtor and creditor, and of interfering with contracts.
CH. XXXIV.] PROHIBITIONS — CONTRACTS. 255
had been carried to such an excess by the state legis-
lature, as to break in upon all the ordinary intercourse
of society, and to destroy all private confidence. It
was a great object to prevent for the future such mis-
chievous measures. (6.) That the clause, in its terms,
purports to be perpetual ; and the principle, to be of
any value, must be perpetual. It is expressed in terms
sufficiently broad to operate in all future times ; and the
just inference, therefore, is, that it was so intended.
But if the other interpretation of it be adopted, the
clause will become of little effect ; and the constitution
will have imposed a restriction, in language indicating
perpetuity, which every state in the Union may elude
at pleasure. The obligadon of contracts in force at
any given time is but of short duration ; and if the pro-
hibition be of retrospective laws only, a very short lapse
of time will remove every subject, upon which state
laws are forbidden to operate, and make this provision
of the consdtution so far useless. Instead of introduc-
ing a great principle, prohibidng all laws of this noxious
character, the constitution will suspend their operation
only for a moment, or except pre-existing cases from
it. The nature of the provision is thus essentially
changed. Instead of being a prohibidon to pass laws
impairing the obligation of contracts, it is only a prohi-
bition to pass retrospecdve laws. (7.) That there is
the less reason for adopting such a construction, since
the state laws, which produced the mischief, were pros-
pective, as well as retrospective.^
§ 1384. The question is now understood to be final-
ly at rest ; and state insolvent laws, discharging the
obli2:ation of future contracts, are to be deemed consti-
1 See Ogden v Saunders j 12 Wheat. R. p. 254 to 357.
256 CONSTITUTIOIV OF THE U. STATES. [bOOK III.
tutional. Still a very important point remains to be
examined ; and that is, to what contracts such laws can
rightfully apply. The result of the various decisions on
this subject is, (1.) That they apply to all con-
tracts made within the state between citizens of the
state. (2.) That they do not apply to contracts made
within the state between a citizen of a state, and a citi-
zen of another state. (3.) That they do not apply to
contracts not made within the state. In all these cases
it is considered, that the state does not possess a juris-
diction, coextensive with the contract, over the parties ;
and therefore, that the constitution of the United States
protects them from prospective, as well as retrospective
legislation.^ Still, however, if a creditor voluntarily
makes himself a party to the proceedings under an in-
solvent law of a state, which discharges the contract, and
accepts a dividend declared under such law, he will be
bound by his own act, and be deemed to have abandoned
his extra-territorial immunity.^ Of course, the consti-
tutional prohibidon does not apply to insolvent, or other
laws passed before the adoption of the constitudon,
operating upon contracts and rights of property vested,
and in esse before that time.^ And it may be added,
that state insolvent laws have no operation whatsoever
oh contracts made with the United States ; for such
contracts are in no manner whatsoever subject to state
jurisdiction/
^ 1385. It has been already stated, that a grant is a
contract within the meaning of the constitution, as much
as an unexecuted agreement. The prohibition, there-
1 Oirdbn V. Saunders, 12 Wheat. R. 358 ; McMullan v. JV*ei7, 4 W heat.
R. 201).
2 Clay V. Smilh, 3 Petcrs's Sup. R. 411.
3 Owhigs V. Speed, 5 Wheat. R. 420.
4 United States v. JVilson, 8 Wheat. R. 253.
en. XXXIV.] PROIIIIilTIONS CONTUACTS. 257
fore, equally reaches all interferences with {)fivate
grants and private conveyances, of whatever nature they
may be. But it has been made a question, whether it
applies, in the same extent, to contracts and grants of
a state created directly by a law, or made by some au-
thorized agent in pursuance of a law. It has been
suggested, that, in such cases, it is to be deemed an
act of the legislative power ; and that all laws are re-
pealable by the same authority, which enacted them.
But it has been decided upon solemn argument, that
contracts and grants made by a state are not less within
the reach of the prohibition, than contracts and grants
of private persons ; that the question is not, whether
such contracts or grants are made directly by law in
the form of legislation, or in any other form, but w heth-
er they exist at all. The legislature may, by a law, di-
rectly make a grant ; and such grant, when once made,
becomes irrevocable, and cannot be constitutionally im-
paired. So the legislature may make a contract with
individuals directly by a law, pledging the state to a
performance of it ; and then, when it is accepted, it is
equally under the protection of the constitution. Thus,
w^here a state authorized a sale of its public lands, and
the sale was accordingly made, and conveyances given,
it was held, that those conveyances could not be re-
scinded, or revoked by the state.^ So where a slate,
by a law, entered into a contract with certain Indians to
exempt their lands from taxation for a valuable consid-
eration, it w^as held, that the exemption could not be
revoked.^ And grants of land, once voluntarily made
1 Fltlcher V. Peck, 6 Cranch 87, l;]5; 8. C. 2 Peters's Cond. R.
208 ; 1 Kent's Comm. Lcct. 11), p. 3t8.
2 mw Jersey v. mison, 7 Cranch, 164 ; S. C. 2 Peters's Cond. R.
457 ; 1 Kent's Comm, Lect. 19, p. 389.
VOL. HI. 33
258 CONSTITUTION OF THE U. STATES. [bOOK III.
by a state, by a special law, or under general laws, when
once perfected, are equally as incapable of being resum-
ed by a subsequent law, as those founded on a valuable
consideration. Thus, if a state grant glebe lands, or
other lands to parishes, towns, or private persons gra-
tuitously, they constitute irrevocable executed con-
tracts.^ And it may be laid down, as a general princi-
ple, that, whenever a law is in its own nature a con-
tract, and absolute rights have vested under it, a repeal
of that law cannot divest those rights, or annihilate or
impair the tide so acquired. A grant (as has been
already stated) amounts to an extinguishment of the
right of the grantor, and implies a contract not to reassert
it.2
1386. The cases above spoken of are cases, in
which rights of property are concerned, and are,
manifestly, within the scope of the prohibition. But a
quesuon, of a more nice and delicate nature, has been
also litigated ; and that is, how far charters, granted by
a state, are contracts within the meaning of the con-
stitution. That the framers of the constitution did not
intend to restrain the states in the regulation of their
civil institutions, adopted for internal government, is
admitted ; and it has never been so construed. It has
always been understood, that the contracts spoken of
in the consUtution were those, which respected pro-
perty, or some other object of value, and which con-
ferred rights capable of being asserted in a court of
justice.^ A charter is certainly in form and sub-
' Terrtlt v. Taylor, 9 Cranch, 52 ; S. C. 3 Peters's Cond. R. 259 ; Town
of PawUt V. Clarke, 0 Crancli, 535; S. C- 3 Peters's Cond. R. 408; 1
Kent's Comm. Lect. ]9, p. 369.
2 Fletcher v. Peck, 6 Cranch 87, 135 ; S. C. 2 Peters's Cond. R. 308 ; 1
Kent's Comm. Lect. 19, p. 38.
3 Dartmouth College v. Woodward, 4 Wheat. R.518, 629.
CH. XXXIV.] PROHIBITIONS CONTRACTS. 259
Stance a contract ; it is a grant of powers, rights, and
privileges ; and it usually gives a capacity to take and to
hold property. Where a charter creates a corporation,
it emphatically confers this capacity ; for it is an
incident to a corporation, (unless prohibited,) to take
and to hold property. A charter granted to private
persons, for private purposes, is within the terms, and
the reason of the prohibition. It confers rights and
privileges, upon the faith of which it is accepted. It
imparts obligations and duties on their part, which they
are not at liberty to disregard ; and it implies a con-
tract on the part of the legislature, that the rights and
privileges, so granted, shall be enjoyed. It is wholly
immaterial, in such cases, whether the corporation take
for their own private benefit, or for the benefit of
other persons. A grant to a private trustee, for the
benefit of a particular cestui que trust, is not less a con-
tract, than if the trustee should take for his ow^n benefit.
A charter to a bank, or insurance, or turnpike company,
is certainly a contract, founded in a valuable considera-
tion. But it is not more so, than a charter incorporat-
ing persons for the erection and support of a hospital
for the aged, the sick, or the infirm, which is to be
supported by private contributions, or is founded upon
private charity. If the state should make a grant of
funds, in aid of such a corporation, it has never been
supposed, that it could revoke them at its pleasure. It
would have no remaining authority over the corpora-
tion, but that, which is judicial, to enforce the proper
administradon of the trust. Neither is a grant less a
contract, though no beneficial interest accrues to the
possessor. Many a purchase, w^hether corporate or
not, may, in point of fact, be of no exchangeable value
to the owners ; and yet the grants confirming them
260 CONSTITUTION OF THE U. STATES. [bOOK III.
are not less within the protection of the constitution. All
incorporeal hereditaments, such as immunities, dignities,
offices, and franchises, are in law deemed valuable
rights, and wherever they are subjects of a contract or
grant, they are just as much within the reach of the
constitution, as any other grants ; for the constitution
makes no account of the greater, or less value of any
thing granted. All corporate franchises are legal
estates. They are powers coupled with an interest ;
and the corporators have vested rights in their charac-
ter as corporators.^
^ 1387. A charter, then, being a contract within the
scope of the constitution, the next consideration, which
has arisen upon this important subject, is, whether the
principle applies to all charters, public as well as private.
Corporations are divisible into two sorts, such as are
strictly public, and such as are private. Within the
former denomination are included all corporations,
created for public purposes only, such as cities, towns,
parishes, and other public bodies. Within the latter
denomination all corporations are included, w^hich do
not strictly belong to the former. There is no doubt,
as to public corporations, which exist only for public
purposes, that the legislature may change, modify,
enlarge, and restrain them ; with this limitation, how-
ever, that property, held by such corporation, shall still
be secured for the use of those, for whom, and at whose
expense it has been acquired. The principle may be
stated in a more general form. If a charter be a mere
grant of political power, if it create a civil institution,
1 Dartmouth College v. Woodward, 4 Wheat. R. 518, (129, G.30, G36,
638, 644, G45, G4G, G47, G53, G5(i, G57, 658, G97, G98, G99, 700,701, 702.
2 Terrell v- Taylor, 9 Crancl),52; Drtrtmoidh College v. Woodward, \
Wheat. R. GG3, 694.
CH. XXXIV.] PROHIBITIONS CONTRACTS. 261
to be employed in the administration of the govern-
ment, or, if the funds be public property alone, and the
government alone be interested in the management of
them, the legislative power over such charter is not
restrained by the constitution, but remains unlimited.^
The reason is, that it is only a mode of exercising
public rights and public powers, for the promotion of
the general interest ; and, therefore, it must, from its
very nature, remain subject to the legislative will, so
always that private rights are not infringed, or trenched
upon.
§ 1388. But an attempt has been made to press this
principle much farther, and to exempt from the consti-
tutional prohibition all charters, which, though granted
to private persons, are in reality trusts for purposes
and objects, which may, in a certain sense, be deemed
public and general. The first great case, in which this
doctrine became the subject of judicial examination
and decision, was the case of Dartmouth College.
The legislature of New-Ham,pshire had, without the
consent of the corporation, passed an act changing the
organization of the original provincial charter of the
college, and transferring all the rights, privileges, and
franchises from the old charter trustees to new trustees,
appointed under the act. The constitutionality of the
act was contested, and after solemn argument, it was
deliberately held by the Supreme Court, that .the
provincial charter was a contract within the meaning
of the constitution, and that the amendatory act was
utterly void, as impairing the obligation of that charter.
The college was deemed, like other colleges of private
foundation, to be a private eleemosynary institudon,
1 Dartmouth College v. Woodward, 4 Wlieat. R. 518, 629, 630, Qb^,
663, 694, to 701.
262 CONSTITUTION OF THE U. STATES. [bOOK III.
endowed, by its charter, with a capacity to take pro-
perty unconnected with the government. Its funds were
bestowed upon the faith of the charter, and those funds
consisted entirely of private donations. It is true, that
the uses were in some sense public ; that is, for the
general benefit, and not for the mere benefit of the cor-
porators; but this did not make the corporation a public
corporation. It was a private institution for general
charity. It was not distinguishable in principle from
a private donation, vested in private trustees, for a
public charity, or for a particular purpose of beneficence.
And the state itself, if it had bestowed funds upon a
charity of the same nature, could not resume those
funds. In short, the charter was deemed a contract,
to which the government, and the donors, and the
trustees of the corporation, were all parties. It was for
a valuable consideration, for the security and disposi-
tion of property, which was entrusted to the corporation
upon the faith of its terms ; and the trustees acquired
rights under it, which could not be taken away ; for
they came to them clothed with trusts, which they
were obliged to perform, and could not constitutionally
disregard. The reasoning in the case, of which this
is a very faint and imperfect outline, should receive a
diligent perusal ; and it is difficult to present it in an
abridged form, without impairing its force, or breaking
its connexion.^ The doctrine is held to be equally
applicable to grants of addidonal rights and privileges
to an existing corporation, and to the original charter,
by which a corporation is first brought into existence,
and established. As soon as the latter become organ-
1 Dartmouth College v. Woodward, 4 Wheat. R. 518, 624 et seq. ; 1
Kent. Comm. Lect. 19, p. 389 to 392.
CH. XXXIV.] PROHIBITIONS CONTRACTS. 263
ized and in esse, the charter becomes a contract with
the corporators.-^
§ 1389. It has not been thought any objection to
this interpretation, that the preservation of charters,
and other corporate rights, might not have been prima-
rily, or even secondarily, within the contemplation of
the framers of the constitution, when this clause was
introduced. It is probable, that the other great evils,
already alluded to, constituted the main inducement to
insert it, where the temptations were more strong, and
the interest more immediate and striking, to induce a
violation of contracts. But though the motive may thus
have been to reach other more pressing mischiefs, the
prohibition itself is made general. It is applicable to
all contracts, and not confined to the forms then most
known, and most divided. Although a rare or particu-
lar case may not of itself be of sufficient magnitude to
induce the estabhshment of a constitudonal rule; yet it
must be governed by that rule, when established, unless
some plain and strong reason for excluding it can be
given. It is not sufficient to show, that it may not have
been foreseen, or intendonally provided for. To ex-
clude it, it is necessary to go farther, and show, that if
the case had been suggested, the language of the con-
vention would have been varied so, as to exclude and
except it. Where a case falls within the words of a
rule or prohibition, it must be held within its opera-
tion, unless there is something obviously absurd, or
mischievous, or repugnant to the general spirit of the
instrument, arising from such a construction.^ No such
^ Dartmouth College v. Woodward, 4 Wheat. R. 518, 024 et seq. ; 1
Kent. Comm. Lect. 19, p. 389 to 392.
2 Dartmouth College v. Woodward, 4 Wheat. 044, G45. See also
Sturgis V. Croivninshield, 4 Wheat, R. 202.
264 CONSTITUTION OF THE U. STATES. [bOOK III.
absurdity, mischief, or repugnancy, can be pretended
in the present case. On the contrary, every reason of
justice, convenience, and policy unite to prove the
wisdom of embracing it in the prohibition. An im-
pregnable barrier is thus thrown around all rights and
franchises derived from the states, and sohdity and
inviolability are given to the literary, charitable, rehg-
ious, and commercial institutions of the country.^
^ 1390. It has also been made a question, whether a
compact between two states, is within the scope of the
prohibition. !' And this also has been decided in the
affirmative.^ The terms, compact and contract, are
synonymous; and, when propositions are offered by
one state, and agreed to and accepted by another,
they necessarily constitute a contract between them.
There is no difference, in reason or in law, to distin-
guish between contracts made by a state with individ-
uals, and contracts made between states. Each ought
to be equally inviolable.^ Thus, where, upon the sepa-
ration of Kentucky from Virginia, it was agreed by
compact between them, that all private rights and
interests in lands in Kentucky, derived from the laws
of Virginia, should remain valid and secure under the
laws of Kentucky, and :5hould be determined by the
laws then existing in Virginia; it was held by the
Supreme Court, that certain laws of Kentucky, (com-
monly called the occupying claimant laws,) which varied
and restricted the rights and remedies of the owners of
1 1 Kent. Comm. Lcct. 19, p. 392.
2 Green v. Biddle, 8 Wheat. R. 1 ; 1 Kent. Comm. Lect. ]9, p. 393
Sergeant on Constitution, ch. 2» [ch. 30.]
3 Green v. Biddle, 8 Wheat. R. 1, 92.
CH. XXXIV.] PROHIBITIONS CONTRACTS. 265
such lands, were void, because they impaired the obli-
gation of the contract. Nothing (said the court)
can be more clear upon principles of law and reason,
than that a law, which denies to the owner of the land a
remedy to secure the possession of it, when withheld
by any person, however innocently he may have
obtained it ; or to recover the profits received from it
by the occupant; or which clogs his recovery of such
possession and profits, by conditions and restrictions,
tending to diminish the value and amount of the thing
recovered ; impairs his right to, and interest in, the
property. If there be no remedy to recover the pos-
session, the law necessarily presumes a want of right
to it. If the remedy afforded be qualified and restrain-
ed by conditions of any kind, the right of the owner may
indeed subsist, and be acknowledged ; but it is impair-
ed, and rendered insecure, according to the nature and
extent of such restrictions.^ But statutes and hmita-
tions, which are mere regulations of the remedy, for
the purposes of general repose and quieting titles, are
not supposed to impair the right ; but merely to provide
for the prosecution of it within a reasonable period ;
and to deem the non-prosecution within the period an
abandonment of it.^
^ 1391. Whether a state legislature has authority to
pass a law declaring a marriage void, or to award a
divorce, has, incidentally, been made a question, but
has never yet come directly in judgment. Marriage,
though it be a civil institution, is understood to consti-
tute a solemn, obligatory contract between the parties.
And it has been, arguendo, denied, that a state legislature
1 Green v. Biddle, 8 Wheat. R. 1, 75, 76.
2 Haivkim v. Barney's Lessee, 5 Peters's Sup. R. 457; Bank of
Hamilton v. Dudley's Lessee, 2 Peters's Sup. R. 492.
VOL. III. 34
266 CONSTITUTION OF THE U. STATES. [bOOK III.
constitutionally possesses authority to dissolve that
contract against the will, and without the default of
either party. This poinr, however, may well be
left for more exact consideration, until it becomes the
very ground of the lis mota}
§ 1392. Before quitting this subject it may be proper
to remark, that as the prohibition, respecting ex post
facto laws, applies only to criminal cases ; and the other
is confined to impairing the obligation of contracts ;
there are many laws of a retrospective character, which
may yet be constitutionally passed by the state le-
gislatures, however unjust, oppressive, or impohtic they
may be.^ Retrospective laws are, indeed, generally un-
just ; and, as has been forcibly said, neither accord with
sound legislation, nor with the fundamental principles
of the social compact.^ Still they are, with the excep-
tions above stated, left open to the states, according to
their own constitutions of government; and become
obligatory, if not prohibited by the latter. Thus, for
instance, w^here the legislature of Connecticut, in 1795,
passed a resolve, setting aside a decree of a court of
probate disapproving of a will, and granted a new
hearing ; it w^as held, that the resolve, not being against
any constitutional principle in that state, was valid ;
and that the will, which was approved upon the new
hearing, was conclusive, as to the rights obtained under
it.^ There is nothing in the constitution of the United
States, which forbids a state legislature from exercising
i Dartmouth College v. Woodward, 4 Wheat. R. ()2[), G95, 696.
2 See Btach v. ifoodhull, 1 Peters's Cir. Ct R. ; 2 Calder v. Bull,
3 Dall. R. 386 ; Salterlee v Mathcwson, 2 Peters's Sup. R. 380; Wilkinson
V, Ldandy 2 Peters's Sup. R. 627, 661.
3 Patterson J. in Calder v. Bull, 3 Dall. R. 397.
4 Calder v. Bull, 3 Dall. R. 386.
CH. XXXIV.] PKOIIIBITIONS CONTRACTS. 267
judicial functions ; nor from divesting rights, vested by
law in an individual ; provided its eliect be not to im-
pair the obligation of a contract.^ If such a law be void,
it is upon principles derived from the general nature
of free governments, and the necessary limitations
created thereby, or from the state restrictions upon
the legislative authority, and not from the prohibitions
of the constitution of the United States. If a state
statute should, contrary to the general principles of law,
declare, that contracts founded upon an illegal or im-
moral consideration, or otherwise void, should never-
theless be valid, and binding between the parties ; its
retrospective character could not be denied ; for the
effect would be to create a contract between the par-
ties, where none had previously existed. Yet it would
not be reached by the constitution of the United States;
for to create a contract, and to impair or destroy one,
can never be construed to mean the same thing. It
may be within the same mischief, and equally unjust,
and ruinous ; but it does not fall within the terms of the
prohibition.^ So, if a state court should decide, that the
relation of landlord and tenant did not legally subsist
between certain persons ; and the legislature should
pass a declaratory act, declaring, that it did subsist ; the
act, so far as the constitution of the United States is
concerned, would be valid.^ So, if a state legislature
should confirm a void sale, if it did not divest the
setded rights of property, it would be valid.^ Nor (as
has been already seen) would a state law, discharging
1 Sntterke v. Mntheivson, 2 Petcrs's Sup. R. ^80, 413 ; Calder v. Bull,
8 Dull. R. 386. See Ohiej/ v. .^niold, 3 Dall. R. 308 ; Jfilkmson v. Le-
land, 2 Peters's Sup. R. G27.
2 Satterke v. Matheicson, 2 Peters's Sup. R. 380, 412, 413.
3 Satkrke v. Matlieivsoii, 2 Peters's Sup. R. 380,412, 413.
4 Wilkinson v. Leland, 2 Peters's Sup. R. 627, 6(^1.
268 CONSTITUTION OF THE U. STATES. [bOOK III.
a party from imprisonment under a judgment upon a
contract, though passed subsequently to the imprison-
ment, be an unconstitutional exercise of power ; for it
would leave the obligation of the contract undisturbed.
The states still possess the rightful authority to abolish
imprisonment for debt ; and may apply it to present, as
well as to future imprisonment.^
§ 1393. Whether, indeed, independently of the
constitution of the United States, the nature of repub-
lican and free governments does not necessarily im-
pose some restraints upon the legislative pow^er, has
been much discussed. It seems to be the general
opinion, fortified by a strong current of judicial opinion,
that since the American revolution no state govern-
ment can be presumed to possess the trancendental
sovereignty, to take away vested rights of property ;
to take the property of A. and transfer it to B. by a
mere legislative act.^ That government can scarcely
be deemed to be free, where the rights of property
are left solely dependent upon a legislative body, with-
out any restraint. The fundamental maxims of a free
government seem to require, that the rights of personal
liberty, and private property, should be held sacred.
At least, no court of justice, in this country, would be
warranted in assuming, that any state legislature pos-
sessed a power to violate and disregard them ; or that
such a power, so repugnant to the common principles
of justice and civil liberty, lurked under any general
grant of legislative authority, or ought to be implied
from any general expression of the will of the people,
in the usual forms of the constitutional delegation of
1 Mason v. Haile, 2 Peters's Sup. R. 870.
2 Fletcher \. Peck, 6 Cranch, 67, 134.
CH. XXXIV.] PROHIBITIONS NOBILITY. 209
power. The people ought not to be presumed to part
with rights, so vital to their security and well-being,
without very strong, and positive declarations to that
effect.^
^ 1394. The remaining prohibition in this clause is,
that no state shall " grant any title of nobility." The
reason of this prohibition is the same, as that, upon
which the like prohibition to the government of the
nation is founded. Indeed, it would be almost absurd
to provide sedulously against such a power in the latter,
if the states were still left free to exercise it. It has
been emphatically said, that this is the corner-stone of
a republican government; for there can be little dan-
ger, while a nobility is excluded, that the government
will ever cease to be that of the people.^
* J Wilkinson w.Leland, 2 Peters's Sup. R.G27, 657. See also Satterlee
V. Mathewson, 2 Peters's Sup. R. 380, 413, 414; Fletcher v. Peck,
eCranch, 67, 134; Tenett v. Taylor, 9 Cranch, 52; Toivn of Paivlet
V. CZarA:, 9 Cranch, 535. See also Sergeant on Const, ch. 28, [cli. 30.J
2 The Federalist, No. 84.
270 CONSTITUTION OF THE U. STATES. [bOOK III
CHAPTER XXXY.
PROHIBITIONS ON THE STATES.
§ 1395. The next clause of the constitution is,
" No state shall, without the consent of congress, lay
" any duty on tonnage ; keep troops, or ships of war
"in time of peace ; enter into any agreement or com-
" pact with another state, or with a foreign power, or
" ensraofe in war, unless actually invaded, or in such
"imminent danger, as will not admit of delay."
§ 1396. The first part of this clause, respecting lay-
ing a duty on tonnage, has been already considered.
The remaining clauses have their origin in the same
general policy and reasoning, which forbid any state
from entering into any treaty, alliance, or confederation >
and from granting letters of marque and reprisal. In
regard to treaties, alliances, and confederations, they
are wholly prohibited. But a state may, with the con-
sent of congress^ enter into an agreement, or compact
with another state, or with a foreign power. What
precise distinction is here intended to be taken be-
tween treaties, and agreements, and compacts is no-
where explained ; and has never as yet been subjected
to any exact judicial, or other examination. A learned
commentator, however, supposes, that the former ordi-
narily relate to subjects of great national magnitude
and importance, and are often perpetual, or for a great
length of time ; but that the latter relate to transitory,
or local concerns, or such, as cannot possibly affect any
other interests, but those of the parties.^ But this
1 1 Tucker's Black. Comm. App. 310.
CH. XXXV.] PROHIBITIONS TONNAGE DUTIES. 271
is at best a very loose, and unsatisfactory exposition,
leaving the whole matter open to the most latitudina-
rian construction. What are subjects of great national
magnitude and importance ? Why may not a com-
pact, or agreement between states, be perpetual 7 If
it may not, what shall be its duration ? Are not treat-
ies often made for short periods, and upon questions
of local interest, and for temporary objects?^
§ 1397. Perhaps the language of the former clause
may be more plausibly interpreted from the terms
used, " treaty, alliance, or confederation," and upon
the ground, that the sense of each is best known by
its association (noscitur a sociis) to apply to treaties of
a political character; such as treaties of alliance for pur-
poses of peace and war ; and treaties of confederation,
in which the parties are leagued for mutual government,
political co-operation, and the exercise of political sove-
reignty ; and treaties of cession of sovereignty, or con-
ferring internal political jurisdiction, or external political
dependence, or general commercial privileges.^ The
latter clause, " compacts and agreements," might then
very properly apply to such, as regarded what might
i The corresponding article of the confederation did not present ex-
actly the same embarrassments in its construction. One clause was,
"No state, without the consent of the United States, in congress assem-
bled, shall enter into any conference, agreement, alliance, or treaty with
any king, prince, or state "; and "No two or more states shall enter
into any treaty, confederation, or alliance whatever between them, with-
out the consent of the United States, &c. ; specifying accurately the
purposes, for which the same is to be entered into, and how long it shall
continue." Taking both clauses, it is manifest, that the former refers
exclusively to foreign states, or nations ; and the latter to the states of
the Union.
^ In this view, one might be almost tempted to conjectrre, that the
original reading was "treaties of alliance, or confederation;" if the
corresponding article of the confederation (art. G) did not repel it.
272 CONSTITUTION OF THE U. STATES. [bOOK III.
be deemed mere private rights of sovereignty; such as
questions ot boundary ; interests in land, situate in the
territory ot" each other ; and other internal regulations
for the mutual comfort, and convenience of states, bor-
dering on each other. Such compacts have been made
since the adoption of the constitution. The compact
between Virginia and Kentucky, already alluded to,
is of this number. Compacts, settling the boundaries
between states, are, or may be, of the same character.
In such cases, the consent of congress may be properly
required, in order to check any infringement of the
rights of the national government ; and at the same
time a total prohibition, to enter into any compact or
agreement, might be attended with permanent incon-
venience, or public mischief.
^ 1398. The other prohibitions in the clause
respect the power of making war, which is appro-
priately confided to the national government.^ The
setting on foot of an army, or navy, by a state in
times of peace, might be a cause of jealousy between
neighbouring states, and provoke the hostilities of for-
eign bordering nations. In other cases, as the protec-
tion of the whole Union is confided to the national
arm, and the national power, it is not fit, that any
state should possess military means to overawe the
Union, or to endanger the general safety. Still, a state
may be so situated, that it may become indispensable
to possess miUtary forces, to resist an expected inva-
1 There were corresponding prohibitions in the confederation, (art 6,)
which differ more in form, than in substance, from those in the constitu-
tion. No state was at liberty, in time of peace, to keep up vessels of
war, or land forces, without the consent of congress. Nor was any state
at liberty to engage in war without the consent of congress, unless in-
vaded, or in imminent danger thereof.
CH. XXXV.] PROniKITIONS MAKING WAR. 273
sion, or insurrection. The danger may be too imminent
lor delay ; and under such circumstances, a state \v ill
have a right to raise troops for its own safety, even
without the consent of congress. After war is once
begun, there is no doubt, that a state may, and indeed
it ought to possess the power, to raise forces for its
own defence ; and its co-operation with the national
forces may often be of great importance, to secure
success and vigour in the operations of war. The
prohibition is, therefore, wisely guarded by exceptions
suilicient for the safety of the states, and not justly
open to the objection of being dangerous to the
Union.
§ 1399. In what manner the consent of congress is
to be given to such acts of the state, is not positively
provided for. Where an express consent is given, no
possible doubt can arise. But the consent of congress
may also be implied ; and, indeed, is always to be im-
phed, when congress adopts the particular act by
sanctioning its objects, and aiding in enforcing them.
Thus, where a state is admitted into the Union, notori-
ously upon a compact made between it and the state,
of which it previously composed a part ; there the act of
congress, admitting such state into the Union, is an im-
plied consent to the terms of the compact. This was
true, as to the compact between Virginia and Ken-
tucky, upon the admission of the latter into the Union ;^
and the hke rule will apply to other states, such as
Maine, more recently admitted into the Union.
§ 1400. We have thus passed through the positive
prohibitions introduced upon the powers of the states.
It wall be observed, that they divide themselves into
1 Green v. Biddlc, 8 Wheat. R. 1, 85, 8G, 87.
VOL. 111. 35
274 CONSTITUTION OF THE U. STATES. [bOOK III.
two classes ; those, which are pohtical in their character,
as an exercise of sovereignty ; and those, which more
especially regard the private rights of individuals.^ In
the latter, the prohibition is absolute and universal. In
the former, it is sometimes absolute, and scmetimes
subjected to the consent of congress. It will, at once,
be perceived, how full of difiiculty and delicacy the
task was to reconcile the jealous tenacity of the states
over their own sovereignty, with the permanent secu-
rity of the national government, and the inviolability of
private rights. The task has been accomplished with
eminent success. If every thing has not been accom-
plished, which a wise forecast might have deemed
proper for the preservation of our national rights
and liberties, in all political events, much has been
done to guard us against the most obvious evils,
and to secure a wholesom.e administration of private
justice. To have attempted more, would probably
have endangered the whole fabric ; and thus have per-
petuated the dominion of misrule and imbecility.
^ 1401. It has been already seen, and it will here-
after more fully appear, that there are implied, as well
as express, prohibitions in the constitution upon the
power of the states. Among the former, one clearly
is, that no state can control, or abridge, or interfere
with the exercise of any authority under the national
government.^ And it may be added, that state laws,
as, for instance, state statutes of limitations, and state in-
solvent laws, have no operation upon the rights or con-
tracts of the United States.^
i Sec Ogden v. Saunders, 12 Wheat. R. 334, 335.
2 1 Kent's Comm. Lcct 19, p. 382.
3 United Stales v. fVilson^ 8 Wlieat. R. 253 ; United States v. Hoar,
2 Mason R. 311.
CH. XXXV.] REMARKS. 275
§ 1402. And here end our commentaries upon the
first article of the constitution, embracing the organi-
zation and powers of the legislative department of the
government, and the })rohil)itions upon the state and
national governments. If we here pause, but for a
moment, we cannot but be struck with the reflection,
how admirably this division and distri[)ution of legisla-
tive powers between the state and national governments
is adapted to preserve the liberty, and promote the
happiness of the people of the United States. To the
general government arc assigned all those powers,
which relate to the common interests of all the states,
as comprising one confederated nation. While to each
state is reserved all those powers, which may affect, or
promote its own domestic interests, its peace, its pros-
perity, its policy, and its local institutions. At the
same time, such limitations and restraints are imposed
upon each government, as experience has demonstrat-
ed to be wise to control any public functionaries, or
as are indispensable to secure the harmonious opera-
tions of the Union.^
^ 1403. A clause was originally proposed, and carried
in the convention, to give the national legislature a nega-
tive upon all laws passed by the states, contravening, in
the opinion of the national legislature, the articles of the
Union, and treaties subsisting under its authority. This
proposition was, however, afterwards negatived ; and
finally abandoned.^ A more acceptable substitute
1 1 Tuck. Black. Comm. App. 314.
2 Journal of Convention, 08, 8(), 87, 104, 107, i:]!), 18:1,283; North
American Review, Ortobcr, 1827, p. 204, 2(J(; ; 2 Piikin's History, 201.
— This seems to have I)cen a favourite opinion of Mr. Madison, ns
well as of some other disliniruished statesmen. North American Re-
view, October, 1827, p. 264, 2()5, 266 ; 2 Pitkin's History, 251, 259.
276 CONSTITUTIOX OF THE U. STATES. [bOOK III.
was found in the article, (hereafter to be examined,)
which declares, that the constitution, laws, and trea-
ties of the United States shall be the supreme law
of the land.
CH. XXXVI.] EXECUTIVE ORGANIZATIOX. 277
CHAPTER XXXVI.
EXECUTIVE DEPARTMENT ORGAXIZATIOJV OF.
^ 1404. In the progress of our examination of tlie
constitution, we are now arrived at the second article,
which contains an enumeration of the organization and
powers of the executive department. What is the
best constitution for the executive department, and
what are the powers, with which it should be entrust-
ed, are problems among the most important, and prob-
ably the most dillicult to be satisfactorily solved, of all,
w^hich are involved in the theory of free governments.^
No man, who has ever studied the subject with pro-
found attention, has risen from the labour without an
increased and almost overwhelming sense of its intri-
cate relations, and perplexing doubts. No man, who
has ever deeply read the human history, and especially
the history of repubhcs, but has been struck with the
consciousness, how hide has been hitherto done to estab-
lish a safe depositary of power in any hands ; and how
often in the hands of one, or a few, or many, of an hered-
itary monarch, or an elective chief, the executive power
has brought ruin upon the state, or sunk under the op-
pressive burthen of its own imbecility. Perhaps our
own history, hitherto, does not establish, that we have
wholly escaped all the dangers ; and that here is not
to be found, as has been the case in other nations, the
vulnerable part of the republic.
§ 1405. It appears, that the subject underwent a
very elaborate discussion in the convendon, with much
1 See 2 Elliot's Deb. 358 ; 1 Kent's Comin. Loct. 13, p. 255, 25(3.
278 CONSTITUTION OF THE U. STATES. [bOOK III.
diversity of opinion ; and various propositions were sub-
mitted of the most opposite character. The Federalist
has remarked, that there is hardly any part of the sys-
tem, the arrangement of which could have been attend-
ed with greater dilHculty ; and none, which has been
inveighed against with less candor, or criticised with
less judgment.^
§ 1406. The first clause of the first section of the
second article is as follows : " The executive power
"shall be vested in a President of the United States
" of America. He shall hold his office during the term
" of four years ; and together Avith the Vice-President,
" chosen for the same term, be chosen as follows."
^ 1407. Under the confederation there was no na-
tional executive. The whole powers of the national
- government were vested in a congress, consisting of a
single body ; and that body was authorized to appoint
a committee of the states, composed of one delegate
from every state, to sit in the recess, and to delegate
to them such of their own povvers, not requiring the
consent of nine states, as nine states should consent
to.^ This want of a national executive was deemed a
fatal defect in the confederation.
^ 1408. In the convention, there does not seem to have
been any objection to the establishment of a national
executive. But upon the quesdon, whether it should
consist of a single person, the affirmadve was carried by
a vote of seven states against three.^ The term of ser-
vice was at first fixed at seven years, by a vote of five
states against four, one being divided. The term was
afterwards altered to four years, upon the report of a
1 The Federalist, No. 07. ^ Confederation, Art. 9, 10.
3 Journ. of Convention, 68, 89, 9(>, ]3().
. \ .
CH. XXXVI.] EXECUTIVE ORGANIZATION. 279
committee, and adopted by the vote of ten states
a«:ainst one.^
§ 1409. In considering this clause, three practical
questions are naturally suggested : First, whether there
should be a distinct executive department ; secondly,
whether it should be composed of more than one per-
son ; and, thirdly, what should be the dui^ation of
office.
^ 1410. Upon the first question, little need be said.
All America have at length concurred in the propriety
of establishing a distinct executive department. The
principle is embraced in every state constitution ; and
it seems now to be assumed among us, as a fundamen-
tal maxim of government, that the legislative, execu-
tive, and judicial departments ought to be separate, and
the powers of one ought not to be exercised by either of
the others. The same maxim is found recognised in
'express terms in many of our state constitutions. It is
hardly necessary to repeat, that where all these pow-
ers are united in the same hands, there is a real despo-
tism, to the extent of their coercive exercise. Where,
on the other hand, they exist together, and yet depend
for their exercise upon the mere authority of recom-
mendation, (as they did under the confederation,^)
they become at once imbecile and arbitrary, subser-
vient to popular clamour, and incapable of steady ac-
tion. The harshness of the measures in relation to
paper money, and the timidity and vacillation in rela-
tion to military affairs, are examples not easily to be
forgotten.
1 Journal of Convention, 90, 136, 211, 225, 324, 332, 333; 2 Pitkin's
Hist. 252.
2 See 1 Jefferson's Corresp. 63.
280 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1411. Taking it, then, for granted, that there ought
to be an executive department, the next consideration
is, how it ought to be organized. It may be stated in
general terms, that that organization is best, which will
at once secure energy in the executive, and safety to
the people. The notion, however, is not uncommon, and
occasionally finds ingenious advocates, that a vigorous
executive is inconsistent with the genius of a repub-
lican government.^ It is difficult to find any sufficient
grounds, on which to rest this notion ; and those,
which are usually stated, belong principally to that class
of minds, which readily indulge in the belief of the
general perfection, as well as perfectibility, of human
nature, and deem the least possible quantity of pow-
er, with which government can subsist, to be the best.
To those, who look abroad into the world, and atten-
tively read the history of other nations, ancient and
modern, far different lessons are taught with a severe
truth and force. Those lessons instruct them, that
energy in the executive is a leading character in the
definition of a good government.^ It is essential to the
protecdon of the community against foreign attacks.
^ See 2 American Museum, 427. — Milton was of this opinion ; and
triumphantly states, that "all ingenious and knowing men will easily
agree with me, that a free commonwealth, without a single person or
house of lords, is by far the best government, if it can be had." (Milton
on the Heady and Easy Way to establish a Free Commonwealth.) His
notion was, that the whole power of the government should centre in a
house of commons. — Locke was in favour of a concentration of the
whole executive and legislative powers in a small assembly ; and Hume
thought the executive powers safely lodged with a hundred senators.
(Hume's Essays, Vol. 1, Essay IG, p. 52(J.) — Mr. Chancellor Kent has
made some just reflections upon these extraordinary opinions in 1 Kent's
Comm. Lect. 13, p. 2(i4.
2 1 Kent's Comm. Lect. 13, p. 253, 254 ; Rawlc on Const, ch. 12,
p. 147, 148.
en. xxxvr.] executive — uivity. 281
It is not less essential to the steady administration of
the laws, to the protection of property against those
irregular and high-handed combinations, which some-
times interrupt the ordinary course of justice, and to
the security of liberty against the enterprises and as-
saults of ambition, of faction, and of anarchy.^ Every
man the least conversant with Roman history knows,
how often that republic was obliged to take refuge in
the absolute power of a single man, under the formida-
ble name of a dictator, as v/ell against the intrigues of
ambitious individuals, aspiring to tyranny, and the sedi-
tions of w^hole classes of the community, threatening
the existence of the government, as against foreign
enemies, menacing the destruction an 1 conquest of the
state.^ A feeble executive implies a feeble execution
of the government. A feeble execution is but another
phrase for a bad execution ; and a government ill ex-
ecuted, whatever may be its theory, must, in practice,
be a bad government.^
^ 1412. The ingredients, which constitute energy in
the executive, are unity, duration, an adequate provi-
sion for its support, and competent powers. The in-
gredients, which constitute safety in a republican form
of government, are a due dependence on the people,
and a due responsibility to the people.^
^ 1413. The most distinguished statesmen have
uniformly maintained the doctrine, that there ought to
be a single executive, and a numerous legislature.
They have considered energy, as the most necessary
qualification of the power, and this as best attained by
1 The Federalist, No. 70; Rawle on Const, ch. 12, p. 149.
2 Ibid. 3 Ibid.
4 Ibid. 1 Kent's Comm. Lect. 13, p. 2.53, 254.
VOL. IIL 36
282 CONSTITUTION OF THE U. STATES. [bOOK III.
reposing the power in a single hand. At the same
time, they have considered with equal propriety, that a
numerous legislature was best adapted to the duties of
leiiislation, and best calculated to conciliate the confi-
dence of the people, and to secure their privileges and
interests.^ Montesquieu has said, that " the executive
power ought to be in the hands of a monarch, because
this branch of government, having need of despatch,
is better administered by one, than by many. On the
other hand, whatever depends on the legislative power
is oftentimes better regulated by many, than by a sin-
gle person. But if there were no monarch, and the
executive power should be committed to a certain
number of persons, selected from the legislative body,
there would be an end to liberty ; by reason, that the two
powers would be united, as the same persons would
sometimes possess, and would always be able to pos-
sess, a share in both."^ De Lolme, in addition to other
advantages, considers the unity of the executive as im-
portant in a free government, because it is thus more
easily res trained. '"^ " In those states," says he, " where
the execution of the laws is entrusted to several
different hands, and to each with different titles and
prerogatives, such division, and such changeableness
of measures, which must be the consequence of it,
constantly hide the true cause of the evils of the state.
Sometimes military tribunes, and at others consuls
bear an absolute sway. Sometimes patricians usurp
every thing; and at other dmes those, who are called
nobles. Sometimes the people are oppressed by de-
1 The Federalist, No. 70.
2 Montesquieu's Spirit of Laws, B. 11, ch. 6.
3 De Lolme on Const, of England, B. 2, ch. 2.
CH. XXXVI.] EXECUTIVE UNITY. 283
cemvirs ; and at others by dictators. Tyranny in such
states does not always beat down the fences, that are
set around it ; but it leaps over them. When men
think it confined to one pla<:e, it starts up again in an-
other. It mocks the efforts of the people, not because
it is invincible, but because it is unknown. But the
indivisibility of the public power in England has con-
stantly kept the views and efforts of the people direct-
ed to one and the same object." ^ He adds, in an-
other place, " we must observe a difference between
the legislative and executive powers. The latter may
be confined, and even is the more easily so, when un-
divided. The legislature on the contrary, in order to
its being restrained, should absolutely be divided."^
§ 1414. That unity is conducive to energy will
scarcely be disputed. Decision, activity, secresy, and
despatch will generally characterise the proceedings of
one man in a much more eminent degree, than the
proceedings of a greater number ; and in proportion,
as the number is increased, these quaUties will be di-
minished.^
§ 1415. This unity may be destroyed in two ways;
first, by vesting the pow er in two or more magistrates
of equal dignity ; secondly, by vesting it ostensibly in
one man, subject, however, in whole or in part to the
control and advice of a council. Of the first, the
two consuls of Rome may serve, as an example in an-
cient times ; and in modern times, the brief and hasty
1 De Lolme on Const, of England, B. 2, ch. 2.
2 De Lolme on Const, of England, B.2, ch. 3. See also, The Fede-
ralist, No. 70; 1 Kent's Comm. Lect. 13, p. 253 to 255. — The celebrat-
ed Junius (the great unknown) has pronounced De Lolme's work to be
at once " deep, solid, and ingenious."
3 The Federalist, No. 70 ; 1 Kent's Comm. Lect. 13, p. 253,254.
284 CONSTITUTION OF THE U. STATES. [bOOK III.
history of the three consuls of France, during its short-
lived republic.^ Of the latter, several states in the
Union furnish examples, as some of the colonies did
before the revolution. Both these methods of destroy-
ing the unity of the executive have had their advo-
cates. They are both liable to similar, if not to equal
objections.^
^ 1416. The experience of other nations, so far as
it goes, coincides with what theory would point out.
The Roman history records may instances of mischiefs
to the repubUc from dissensions between the consuls,
and between the military tribunes, who were at times
substituted instead of the consuls. Those dissensions
would have been even more striking, as well as more
frequent, if it had not been for the peculiar circumstan-
ces of that republic, which often induced the consuls
to divide the administration of the government be-
tween them. And as the consuls were generally chosen
from the Patrician order, which was engaged in per-
petual struggles with the Plebeians for the preserva-
tion of the privileges and dignities of their own order;
there was an external pressure, which compelled them
to act together for mutual support and defence.^
§ 1417. But independent of any of the lights de-
rived from history, it is obvious, that a division of the
executive power between two or more persons must
always tend to produce dissensions,, and fluctuating
councils. Whenever two or more persons are engaged
1 4 Jefferson's Corresp. IGO, Kil. —Propositions were made in the
convention, for an executive composed of a plurality of persons."'^ They
came from that party in the convention, which was understood to be
favourable to a continuation of the confederation with amendments.!
2 The Federalist, No. 70. . . , 3 id.
♦ Journal of Convention, 124 t Id. 123.
CH. XXXVI.] EXECUTIVE UNITY. 285
in any common enterprise, or pui'suit, there is always
danger of difierence of opinion. If it be a public trust,
or office, in which they are clothed with equal dignity
and authority, there are peculiar dangers arising from
personal emulation, or personal animosity ; from supe-
rior talents on one side, encountering strong jealousies
on the other; from pride of opinion on one side, and
weak devotion to popular prejudices on the other; from
the vanity of being theauthor of a plan, or resentment from
some imagined slight by the approval of that of another.
From these, and other causes of the like nature, the
most bitter rivalries and dissensions often spring. When-
ever these happen, they lessen the respectability, weak-
en the authority, and distract the plans and operations
of those, whom they divide. The wisest measures
are those often defeated, or delayed, even in the most
critical moments. And w hat constitutes even a greater
evil, the community often becomes spUt up into rival
factions, adhering to the different persons, who com-
pose the magistracy ; and temporary animosities be-
come thus the foundation of permanent calamities to
the state.^ Indeed, the ruinous effects of rival factions
in free states, struggling for power, has been the con-
stant theme of reproach by the admirers of monarchy,
and of regret by the lovers of republics. The Guelphs
and the Ghibelins, the white and the black factions, have
been immortahzed in the history of the Italian states ;
and they are but an epitome of the same unvarying
scenes in all other republfcs.^
§ 1418. From the very nature of a free government,
inconveniences resuking from a division of power must
1 The Federalist, No. 70.
2 De Lolme on Const. B. 2, ch. 1.
286 CONSTITUTION OF THE U. STATES. [bOOK III.
be submitted to, in the formation of the legislature.
But it is unwise, as well as unnecessary, in the consti-
tution of the executive. In the legislature promptitude
of decision is not of great importance. It is more
often an evil, than a benefit. Differences of opinion
in that department may, indeed, sometimes retard salu-
tary measures ; but they often lead to more circum-
spection and deUberation, and to more perfection and
accuracy in the laws. A resolution, once passed by a
legislative body, becomes a law ; and opposition to it is
either illegal or impolitic. Before it becomes a law,
opposition may diminish the mischiefs, or increase the
irood of the measure. But no favourable circumstances
palliate, or atone for the disadvantages of dissension
in the executive department. The evils are here pure
and unmixed. They embarrass and weaken every
plan, to which they relate, from the first step to the
final conclusion. They constantly counteract the most
important ingredients in the executive character, vigour,
expedition, and certainty of operation. In peace,
distraction of the executive councils is sufficiently
alarming and mischievous. But in war, it prostrates all
energy, and all security. It brings triumph to the
enemy, and disgrace to the country.^
1 The Federalist, No. 70. — The learned commentator on Blackstone's
Commentaries was of opinion, that an executive composed of a single dele-
gate of each state, like the " committee of congress" under the confedera-
tion, would have been better, than a single chief magistrate for the Union.
If such a scheme had prevailed, we should have had at this time an exe-
cutive magistracy of twenty-four persons. See 1 Tuck. Black. Comm.App.
349, 350. Surely the experience of the country, under the confederation,
must have been wholly forgotten, when this scheme approved itself to
the judgment of tiie proposer. Mr. Jeiferson has told us in an emphatic
manner, that the " committee of congress immediately fell into schisms
and dissensions, which became at length so inveterate, as to render all
co-operation among them impracticable. They dissolved themselves,
CH. XXXVI.] EXECUTIVE UXITY. 287
§ 1419. Objections of a like nature apply, though in
some respects with diminished force, to the scheme of
an executive council, whose constitutional concurrence
is rendered indispensable. An artful cabal in that
council w^ould be able to distract and enervate the
whole public councils. And even without such a
cabal, the mere diversity of views and opinions would
almost always mark the exercise of the executive autho-
rity with a spirit of habitual feebleness and dilatoriness,
or a degrading inconsistency.^ But an objection, in a
republican government quite as weighty, is, that such a
participation in the executive power has a direct ten-
dency to conceal faults, and destroy responsibility.
Responsibility is of two kinds, to censure, and to pun-
ishment. The first is the more important of the two,
especially in an elective government. Men in public
trustVill more often act in such a manner, as to render
them unworthy of public favour, than to render them-
selves liable to legal punishment. But the multiplica-
tion of voices in the business of the executive renders
it difficult to fix responsibility of either kind ; for it is
perpetually shifted from one to another. It often be-
comes impossible amidst mutual accusations to deter-
mine, upon whom the blame ought to rest."* A sense
of mutual impropriety sometimes induces the parties
to resort to plausible pretexts to disguise their miscon-
duct ; or a dread of public responsibility to cover up,
abandoning: the helm of government; and it continued without a head,
until congress met, in the ensuing winter. This was then imputed to
the temper of two or three individuals. But the ivise ascnbtd it to the
nature of many 4 Jefferson's Corresp. IGl.
1 The Federalist, No. 70.
2 The Federalist, No. 70; 3 Elliot's Deb. 99, 100, 103; Id. 272;
1 Kent's Comm. Lcct. 13, p. 253, 25-1.
288 CONSTITUTION OF THE U. STATES. [bOOK III.
under the lead of some popular demagogue, their own
faults and vacillations. — Thus, a council often becomes
the means, either of shifting off all effective responsi-
bihtj from the chief magistrate, or of intrigues and
oppositions, which destroy his power, and supplant his
influence. The constant excuse, for want of decision
and public spirit on his part, will be, that he has been
overruled by his council ; and on theirs, that he would
not listen to sound advice, or resisted a cordial co-ope-
ration. In regard to the ordinary operations of govern-
ment, the general result is to introduce a system of
bargaining and management into the executive coun-
cils ; and an equally mischievous system of corruption
and intrigue in the choice and appointment of counsel-
lors. Offices are bestowed on unworthy persons to
gratify a leading member, or mutual concessions are
made to cool opposition, and disarm enmity. It is but
too true, that in those states, where executive councils
exist, the chief magistrate either sinks into comparative
insignificance, or sustains his power by arrangements,
neither honourable to himself, nor salutary to the people.
He is sometimes compelled to follow, when he ought to
lead ; and he is sometimes censured for acts, over which
he has no control, and for appointments to office, which
have been wrung from him by a sort of political necessity.^
§ 1420. The proper conclusion to be drawn from
these considerations is, that plurality in the executive
deprives the people of the two greatest securities for the
faithful exercise of delegated power. First, it removes
the just restraints of public opinion ; and, secondly, it
diminishes the means, as well as the power, of fixing
responsibility for bad measures upon the real authors.^
1 The Federalist, No. 70.
2 The Federalist, No. 70 ; 1 Kent's Comm. Lect. 13, p. 253, 254 ;
1 Tuck, ^llack. Comm. App. 318,319 ; 3 LUiot's Deb. 90, 100.
CH. XXXVI.] EXECUTIVE UNITY. 289
§ 1421. The case of the king of Great Britain is ad-
duced, as a proof the other way ; but it is a case wholly
inapplicable to the circumstances of our republic. In
Great Britain there is an hereditary magistrate ; and it is
a settled maxim in that government, that he can do no
wrong ; the true meaning of which is, that, for the sake
of the public peace, he shall not be accountable for his
administration of public affairs, and his person shall be
sacred. In that kingdom it is, therefore, wise, that he
should have a constitutional council, at once to advise
him in regard to measures, and to become responsible
for those measures. In no other way could any re-
sponsibility be brought home to the executive depart-
ment. Still the king is not bound by the advice of
his council. He is the absolute master of his own
conduct ; and the only alternadve left to the ministry
is, to compel him to follow their advice, or to resign the
administration of the government. In the American
republic the case is wholly difTerent. The executive
magistrate is chosen by, and made responsible to, the
people ; and, therefore, it is most fit, that he should
have the exclusive management of the affairs, for which
he is thus made responsible. In short, the reason for
a council in Great Britain is the very reason for reject-
ing it in America. The object, in such case, is to se-
cure executive energy and responsibility. In Great
Britain it is secured by a council. In America it would
be defeated by one.^
§ 1 422. The idea of a council to the executive, which
^ has prevailed to so gre^t an extent in the state consd-
tutions, has, without doubt, been derived from that
1 The Federalist, No. 70. See Rawle on Const, ch. 12, p. 147 to 150;
North Amer. Review, Oct. 18-27, p. -264, 265.
VOL. III. 37
290 CONSTITUTION OF THE U. STATES. [bOOK III.
maxim of republican jealousy, which considers power
as safer in the hands of a number of men, than of a sin-
gle man. It is a misapplication of a known rule, that
in the multitude of counsel there is safety. If it were
even admitted, that the maxim is jusdy applicable to
the executive magistracy, there are disadvantages on
the other side, which greatly overbalance it. But in
truth, all multiplication of the executive is rather danger-
ous, than friendly to liberty ; and it is more safe to have
a single object for the jealousy and watchfulness of the
people, than many.^ It is in the highest degree proba-
ble, that the peculiar situation, in which the American
states were placed antecedently to the revolution, with
colonial governors placed over them by the crown,
and irresponsible to themselves, gave a sanction to the
opinion of the value of an executive council, and of the
dangers of a single magistrate, wholly disproportionate
to its importance, and inconsistent with the permanent
safety and dignity of an elective republic.^
^ 1423. Upon the question, whether the executive
should be composed of a single person, we have already
seen, that there was, at first, a division of opinion in the
convention, which framed the constitution, seven states
voting in the affirmative, and three in the negative ; ulti-
mately, however, the vote was unanimous in its favour.^
But the project of an executive council was not so
easily dismissed. It was renewed at different periods
in various forms ; and seems to have been finally, though
1 The Federalist, No. 70; 1 Kent's Comm. Lect. 13, p. 253, 254;
3 Elliot's Deb. 99, 100.
2 Mr. Chancellor Kent has, in his Commentaries, condensed the whole
pith of the argument into two paragraphs of great brevity nnd clearne-s.
1 Kent's Comm. Lect. 13, p. 253, 254. See also Rawle on Const, ch. J2,
p, 147, c^c. 1 Tuck. Black. Comm. App. 31G to 3l8.
3 Journal of Convention, p. 95, 90 ; Id. 183.
CH. XXXVI.] EXECUTIVE -DURATION OF OFFICE. 291
indirectly, disposed of by the voteof eight states against
three. ^ The reasoning, which led to this conclusion, is
understood to have been that, which has been alrendy
stated, and which is most elaborately expounded in
the Federalist.^
§ 1424. The question as to the unity of the execu-
tive being disposed of, the next consideration is, as to
the proper duration of his term of ollice. It has been
already mentioned, that duration in oflice constitutes an
essential requisite to the energy of the executive de-
partment. This has relation to tw^o objects ; first, the
personal firmness of the chief magistrate in the employ-
ment of his constitutional powers ; and, secondly, the
stability of the system of administration, w^hich may have
been adopted under his auspices. With regard to the
first, it is evident, that the longer the duration in office,
the greater will be the probability of obtaining so im-
portant an advantage. A man will naturally be inter-
ested in whatever he possesses, in proportion to the
firmness or precariousness of the tenure, by which he
holds it. He will be less attached to what he holds by
a momentary, or uncertain title, than to what he enjoys
by a tide durable, or certain ; and of course he will be
willing to risk more for the one, than for the other.
This remark is not less applicable to political privilege,
or honour, or trust, than to any article of ordinary prop-
erty. A chief magistrate, acting under the conscious-
ness, that in a very short time he must lay down office,
will be apt to feel himself too Utde interested in it to
hazard any material censure or perplexity from an in-
dependent exercise of his powers, or from those ill hu-
1 Journ. of Convention," p. 69, 104, 265, 278, 840, 341. See also 2
Amer. Museum, 435, 534, 537.
2 The Federalist, No. 70; 3 Elliot's Deb. \0i).
292 CONSTITUTION OF THE U. STATES. [bOOK III.
mours, which are apt at times to prevail in all govern-
ments. If the case should be, that he should, notwith-
standing, be re- eligible, his wishes, if he should have
any for office, would combine with his fears to debase
his fortitude, or weaken his integrity, or enhance his
irresolution.^
§ 1425. There are some, perhaps, who may be in-
clined to regard a servile pliancy of the executive to a
prevalentfaction, or opinion in the community, or in the
legislature, as its best recommendation. But such no-
tions betray a very imperfect knowledge of the true
ends and objects of government. While repubhcan
principles demand, that the deliberate sense of the
community should govern the conduct of those, who
administer their affaii^s, it cannot escape observation,
that transient impulses and sudden excitements, caused
by artful and designing men, often lead the people
astray, and require their rulers not to yield up their
permanent interests to any delusions of this sort. It is
a just observation, that the people commonly intend the
public good. But no one, but a deceiver, will pretend,
that they do not often err, as to the best means of pro-
moting it. Indeed, beset, as they are, by the wdles of
sycophants, the snares of the ambitious and the avari-
cious, and the artifices of those, who possess their con-
fidence more, than they deserve, or seek to possess it
by artful appeals to their prejudices, the wonder rather
is, that their errors are not more numerous and more
mischievous. It is the duty of their rulers to resist
such bad designs at all hazards ; and it has not unfre-
quently happened, that by such resistance they have
saved the people from fatal mistakes, and, in their mo-
ments of cooler reflection, obtained their gratitude and
J The Federalist, No. 71.
CH. XXXVI.] EXECUTIVE-DURATION OF OFFICE. 293
their reverence.^ But how can resistance be expected,
where the tenure ot" office is so short, as to make it in-
effectual and insecure ?
^ 1426. The same considerations apply with in-
creased force to the legislature. If the executive de-
partment were to be subservient to the wishes of the
leiiislature, at all times and under all circumstances, the
whole objects of a partition of the powers of govern-
ment would be defeated. To what purpose would it
be to separate the executive and judiciary from the
legislature, if both are to be so constituted, as to be at
the absolute devotion of the latter 7 It is one thing to
be subordinate to the laws ; and quite a different thing
to be dependent upon the legislative body. The first
comports with, the last violates, the fundamental prin-
ciples of good government ; and, in fact, whatever may
be the form of the constitution, the last unites all power
in the same hands. The tendency of the legislative au-
thority to absorb every other has been already insisted
on at large in the preceding part of these Commentaries,
and need not here be further illustrated. In govern-
ments purely republican it has been seen, that this ten-
dency is almost irresistible. The representatives of
the people are but too apt to imagine, that they are the
people themselves ; and they betray strong symptoms
of impatience and even disgust at the least resistance
from any other quarter. They seem to think the ex-
ercise of its proper rights by the executive, or the judi-
ciary, to be a breach of their privileges, and an impeach-
ment of their wisdom.^ If, therefore, the executive is
1 The Federalist, No. 7\.
2 The Federalist, No. 71 ; Id. No. 73; Id. No. 51. — Mr. Jefferson
says, ''The executive in our governments is not the sole, it is scarcely
the principal object of my jealousy. The tyranny of the legislatures is
the most formidable dread at present, and will be for many years. That
294 CONSTITUTION OF THE U. STATES. [bOOK III.
to constitute an effective, independent branch of the
government, it is indispensable to give it some perma-
nence of duration in office, and some motive for a firm
exercise of its powers.
§ 1427. The other ground, that of stability in the
system of administration, is still more strikingly connect-
ed with duration in office. Few men will be found
willing to commit themselves to a course of policy,
whose wisdom may be perfectly clear to themselves, if
they cannot be permitted to com.plete, what they have
begun. Of what consequence will it be to form the
best plans of executive administration, if they are per-
petually passing into new hands, before they are ma-
tured, or may be defeated at the moment, w^hen their
reasonableness and their value cannot be understood,
or realized by the public ? One of the truest rewards
to patriots and statesmen is the consciousness, that the
objections raised against their measures will disappear
upon a fair trial ; and that the gratitude and affection
the people will follow their labours, long after they have
ceased to be actors upon the public scenes. But who
will plant, when he can never reap ? Who will sacri-
fice his present ease, and reputation, and popularity,
and encounter obloquy and persecution, for systems,
which he can neither mould so, as to ensure success,
nor direct so, as to justify the experiment ?
^ 1428. The natural result of a change of ihe head
of the government w^ill be a change in the course of
administration, as well as a change in the subordinate
persons, who are to act as ministers to the executive.
A successor in oflice will feel litde sympathy with
the plans of his predecessor. To undo what has been
of the Executive will come in its turn ; but it will be at a remote period."
2 Jefferson's Corresp. 443.
CH. XXXVI.] EXECUTIVE-DURATION IN OFFICE. 295
done by the latter will be supposed to give proofs of
his own capacity ; and will recommend him to all
those, who were adversaries of the past administration ;
and perhaps will constitute the main grounds of
elevating him to ofFice. Personal pride, party princi-
ples, and an ambition lor public distinction will thus
naturally prompt to an abandonment of old schemes,
and combine with that love of novelty so congenial to
all fi-ee states, to make every new administration the
founders of new systems of government.^
§ 1429. What should be the proper duration of office
is matter of more doubt and speculation. On the one
hand, it may be said, that the shorter the period of
office, the more security there will be against any
dangerous abuse of power. The longer the period,
the less will responsibiUty be felt, and the more personal
ambition will be indulged. On the other hand, the
considerations above stated prove, that a very short
period is, practically speaking, equivalent to a surrender
of the executive power, as a check in government, or
subjects it to an intolerable vacillation and imbecility.
In the convention itself much diversity of opinion
existed on this subject. It was at one time proposed,
that the executive should be chosen during good be-
haviour. But this proposition received little favour,
and seems to have been abandoned without much
effort.^
1 The Federalist, No 72.
2 This plan, whatever may now be thought of its value, was at the time
supported by some of the purest patriots. Mr. Hamilton, Mr. Madison,
and Mr. J;iy were among the number. North American Review, Oct.
J827, p. 263, 264, 266 ; Journal of Convention, p. 130, 131, 185 ; 2 Pitk.
Hist. 259, note. Mr. Hamilton, (it seems) at a subsequent period of the
convention, changed his opinion on account of the increased danger to
the public tranquillity, incident to the election of a magistrate to this
296 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1 430. Another proposition was (as has been seen)
to choose the executive for seven years, which at
first passed by a bare majority ; ^ but being coupled
with a clause, " to be chosen by the national legisla-
ture," it was approved by the vote of eight states
against tvvo.^ Another clause, " to be ineligible a
second time," was added by the vote of eight states
against one, one being divided.^ In this form the
clause stood in the first draft of the constitution,
though some intermediate efforts were made to vary
it.'* But it was ultimately altered upon the report of
a committee so, as to change the mode of election,
the term of office, and the re-eligibihty, to their pres-
ent form, by the vote of ten states against one.^
§ 1431. It is most probable, that these three pro-
positions had a mutual influence upon the final vote.
Those, who wished a choice to be made by the people,
rather than by the national legislature, would naturally
incline to a shorter period of office, than seven years.
Those, who were in favour of seven years, might be
willing to consent to the clause against re-eligibihty,
when they would resist it, if the period of office were
reduced to four years.^ And those, who favoured the
latter, might more readily yield the prohibitory clause,
than increase the duration of office. All this, however,
is but conjecture ; and the most, that can be gathered
degree of permanency. 2 Pitk. Hist. 259, 260, note. Possibly, the
same change may have occurred in the opinions of others. — Journal of
Convention, p. 130, 131.
1 Journal of Convention, p. 90.
2 Id. 92, 136, 224, 225; Id. 286, 287.
3 Id. 94, 204.
4 Journal of Convention, 190, 191 to 196, 200 ; Id. 286, 287, 288.
5 Id 225, 324, .330, 332, 337. See 2 Jefferson's Correspondence,
p. 64, 65 ; 2 Pitk. Hist. 252, 253 ; Journal of Convention, 288, 289.
6 See 1 Jefferson's Correspondence, p. 64, 65.
CH. XXXVI.] EXECUTIVE-DURATION OF OFFICE. 297
from the final result, is, that opinions, strongly main-
tained at the beginning of the discussion, were yielded
up in a spirit of compromise, or abandoned upon the
weight of argument.^
^ 1432. It is observable, that the period actually
fixed is intermediate between the term of ollice of the
senate, and that of the house of representatives. In the
course of one presidential term, the house is, or may be,
twice recomposed; and two- thirds of the senate chang-
ed, or re-elected. So far, as executive influence can be
presumed to operate upon either branch of the legisla-
ture unfavourably to the rights of the people, the latter
possess, in their elecdve franchise, ample means of
redress. On the other hand, so far, as uniformity and
stability in the administration of executive duties are
desirable, they are in some measure secured by the
more permanent tenure of office of the senate, w hich
will check too hasty a departure from the old system,
by a change of the executive, or representadve branch
of the government.^
1 3 Elliot's Debates, 99, 100; 2 Id. 358; 1 Jefferson's Correspon-
dence, 64, 65.
2 Doctor Paley has condemned all elective monarchies, and, indeed,
all elective chief magistrates. " The confession of every writer on the
subject of civil government," says he, "the experience of ages, the
example of Poland, and of the Papal Dominions, seem to place this
amongst the few indubitable maxims, which the science of government
admits of. A crown is too splendid a prize to be conferred upon merit.
The passions, or interests of the electors, exclude all consideration of the
qualities of the competitors. The same observation holds concerning
the appointments to any office, which is attended with a great share of
power or emolument. Nothing is gained by a popular choice worth
the dissensions, tumults, and interruptions of regular industry, with
which it is inseparably attended." (Daley's Moral Philosophy, B. 6, ch.
7, p, 367.) Mr. Chancellor Kent has also remarked, that it is a curious
fact in European history, that on the first partition of Poland in 1773,
when the partitioning powers thought it expedient to foster and confirm
all the defects of its wretched government, they sagaciously demanded
VOL. 111. 3S
298 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1433. Whether the period of four years will answer
all the purposes, for which the executive department is
established, so as to give it at once energy and safety,
and to preserve a due balance in the administration of
the government, is a problem, which can be solved only
by experience. That it will contribute far more, than
a shorter period, towards these objects, and thus have
a material influence upon the spirit and character of the
government, may be safely aflfirmed.^ Between the
commencement and termination of the period of office,
there will be a considerable interval, at once to justify
some independence of opinion and action, and some
reasonable belief, that the propriety of the measures
adopted during the administration may be seen, and
felt by the community at large. The executive need
not be intimidated in his course by the dread of an
immediate loss of public confidence, without the power
of regaining it before a new election ; and he may, v>^ith
some confidence, look forward to that esteem and
respect of his fellow-citizens, which pubhc services
usually obtain, when they are faithfully and firmly
pursued with an honest devotion to the public good.
If he should be re-elected, he will still more exten-
sively possess the means of carrying into effect a wise
and beneficent system of policy, foreign as well as
domestic. And if he should be compelled to retire,
he cannot but have the consciousness, that measures,
long enough pursued to be found useful, will be per-
severed in; or, if abandoned, the contrast will reflect
of Uie Polish Diet, that the crown should continue elective. 1 Kent.
Cbmm. Lect. 13, p. 25G. America has indulged the proud hope, that
she shall avoid every danger of this sort, and escape at once from the
evils of an hereditary, and of an elective monarchy. Who, that loves
liberty, docs not wish success to her efforts ?
iTheFederalist, No. 71.
CH. XXXVI.] EXECUTIVE-DURATION OF OFFICE. 299
new honour upon the past administratioii of the gov-
ernment, and perhaps reinstate him in ollice. At all
events, tlie period is not long enough to justify any
alarms for the public safety.^ The danger is not, that
such a limited executive will become an absolute dic-
tator ; but, that he may be overwhelmed by the
combined operations of popular influence and legisla-
tive power. It may be reasonably doubted, from the
limited duration of this office, whether, in point of inde-
pendence and firmness, he will not be found unequal
to the task, which the constitution assigns him ; and
if such a doubt may be indulged, that alone will be
decisive against any just jealousy of his encroachments.^
Even in England, where an hereditary monarch with
vast prerogadves and patronage exists, it has been
found, that the house of commons, from their immediate
sympathy with the people, and their possession of the
purse-strings of the nation, have been able effectually to
check all his usurpations, and to diminish his inflence.
Nay, from small beginnings they have risen to be the
great power in the state, counterpoising not only the
authority of the crown, but the rank and wealth of the
nobility ; and gaining so solid an accession of influence,
that they rather lead, than foHow, the great measures
of the administration.^
§ 1434. In comparing the duration of office of the
president with that of the state executives, additional
reasons will present themselves in favour of the former.
At the time of the adoption of the constitution, the
executive was chosen annually in some of the states ;
in others, biennially; and in others, triennially. In some
1 1 Tuck. Black. Coram. App. 318 ; Rawle on Const, ch. 31, p. 287 to
290.
2 The Federalist, No. 71.
3 The Federalist, No. 71.
300 CONSTITUTION OF THE U. STATES. [bOOK 111.
of the states, which have been subsequently admitted
into the Union, the executive is chosen annually ; in
others, biennially ; in others, triennially ; and in others,
quadriennially. So that there is a great diversity of
opinion exhibited on the subject, not only in the early,
but in the later state constitutions in the Union.^ Now,
it may be affirmed, that if, considering the nature of
executive duties in the state governments, a period of
office of two, or three, or even four years, has not been
found either dangerous or inconvenient, there are
very strong reasons, why the duration of office of the
president of the United States should be at least equal
to the longest of these periods. The nature of the
duties to be performed by the president, both at home
and abroad, are so various and complicated, as not only to
require great talents, and great wisdom to perform them
in any manner suitable to their importance and difHculty ;
but also long experience in office to acquire, what may
be deemed the habits of administration, and a steadiness,
as well as comprehensiveness, of view of all the bearings
of measures. The executive duties in the states are
few, and confined to a narrow range. Those of the
president embrace all the ordinary and extraordinary
arrangements of peace and war, of diplomacy and
negotiation, of finance, of naval and military operations,
and of the execution of the laws through almost infinite
ramifications of details, and in places at vast distances
from each other.^ He is compelled constantly to take
into view the whole circuit of the Union ; and to master
many of the local interests and other circumstances,
which may require new adaptations of measures to meet
1 4 Elliot's Debates, App. 557 ; Dr. Leiber's Encyclopaedia Ameri-
cana, Art., Constitutions ; The Federalist, No. 39.
2 Tlie Federalist, No. 72.
CH. XXXVI.] EXECUTIVE-DURATION IN OFFICE. 301
the public exigences. Considerable time must neces-
sarily elapse before the requisite knowledge for the
proper discharge of all the functions of his office can
be obtained ; and, after it is obtained, time must be
allowed to enable him to act upon that knowledge so,
as to give vigour and healthinesss to the operations of
the government. A short term of office w^ould scarcely
suffice, either for suitable knowledge, or suitable action.
And to say the least, four years employed in the
executive functions of the Union w^ould not enable
any man to become more famihar with them, than half
that period with those of a single state.^ In short, the
same general considerations, which require and justify
a prolongation of the period of service of the members
of the national legislature beyond that of the members
of the state legislatures, apply with full force to the
executive department. There have, nevertheless, at
different periods of the government, been found able
and ingenious minds, who have contended for an annual
election of the president, or some shorter period, than
four years.^
§ 1435. Hitherto our experience has demonstrated,
that the period has not been found practically so long,
as to create danger to the people, or so short, as to take
away a reasonable independence and energy from the
executive. Still it cannot be disguised, that sufficient
1 1 Kent. Comm. Lect. 13, p. 262.
2 Mr. Senator Hillhouse, in April, ISOS, proposed an annual election,
among other amendments to the constitution ; and defended the propo-
sition in a very elaborate speech. The amendment, however, found no
support. See Hillhbusc's Speech, 12th April, 1808, printed at New
Haven, by O. Steele & Co. The learned editor of Blackstone's Com-
mentaries manifestly thought a more frequent election, than once in four
years, desirable. 1 Tuck. Black. Comm. App. 328, 329.
302 CONSTITUTION OF THE U. STATES. [bOOK 111.
time has scarcely yet elapsed to enable us to pronounce
a decisive opinion upon the subject; since the executive
has generally acted with a majority of the nation; and
in critical times has been sustained by the force of that
majority in strong measures, and in times of more
tranquillity, by the general moderation of the pohcy of
his administration.
^ 1436. Another question, connected with the du-
ration of office of the president, w^as much agitated in
the convention, and has often since been a topic of
serious discussion ; and that is, whether he should be
re-ehgible to office. In support of the opinion, that
the president ought to be ineligible after one period
of office, it was urged, that the return of pubUc officers
into the mass of the common people, w^here they w ould
feel the tone, which they had given to the administration
of the laws, w^as the best security the public could
have for their good behaviour. It would operate as
a check upon the restlessness of ambition, and at
the same time promote the independence of the exec-
utive. It w^ould prevent him from a cringing sub-
serviency to procure a re-election ; or to a resort to
corrupt intrigues for the maintenance of his pow^er.^
And it was even added by some, whose imaginations
w^ere continually haunted by terrors of all sorts from the
existence of any powders in the national government,
that the re-eligibihty of the executive w^ould furnish an
inducement to foreign governments to interfere in our
elections, and would thus inflict upon us all the evils,
which had desolated, and betrayed Poland.^
1 3 Elliot's Debates, 99; Rawle on Const, ch. 31, p. 283 ; The Fed-
eralist, No. 72.
a See 2 Elliot's Debates, 357 ; Rawle on Const, ch. 31, p. 283.
CH. XXXVI.] EXECUTIVE RE-ELIGIBILITY. 303
^ 1437. In opposition to these suggestions it was
stated, that one ill effect of the exclusion would be a
diminution of the inducements to good behaviour.
There are few men, who would not feel much less zeal
in the discharge of a duty, when they were conscious,
that the advantage of the station, with which it is
connected, must be relinquished at a determinate pe-
riod, than when they were permitted to entertain a
hope of obtaining by their merit a continuance of it. A
desire of reward is one of the strongest incentives of
human conduct ; and the best security for the fidelity
of mankind is to make interest coincide with duty.
Even the love of fame, the ruHng passion of the noblest
minds, will scarcely prompt a man to undertake ex-
tensive and arduous enterprises, requiring considerable
time to mature and perfect, if they may be taken from
his management before their accomphshment, or be
liable to failure in the hands of a successor. The most,
under such circumstances, which can be expected of
the generaUty of mankind, is the negative merit of not
doing harm, instead of the positive merit of doing good."^
Another ill effect of the exclusion would be the temp-
tation to sordid views, to peculation, to the corrupt
gratification of favourites, and in some instances to
usurpation. A selfish or avaricious executive might,
under such circumstances, be disposed to make the
most he could for himself, and his friends, and partisans,
during his brief continuance in office, and to introduce a
system of official patronage and emoluments, at war
with the public interests, but well adapted to his own.
If he were vain and ambitious, as well as avaricious and
selfish, the transient possession of his honours would
1 The Federalist, No. 72 ; 3 Elliot's Deb. 99 ; Id. 358.
304 CONSTITUTION OF THE U. STATES. [bOOK III.
depress the former passions, and give new impulses to
the latter. He would dread the loss of gain more, than
the loss of fame ; since the power must drop from his
hands too soon to ensure any substantial addition to
his reputation.^ On the other hand, his very ambition,
as well as his avarice, might tempt him to usurpation ;
since the chance of impeachment would scarcely be
worthy of thought ; and the present power of serving
friends might easily surround him with advocates for
every stretch of authority, which would flatter his
vanity, or administer to their necessides,
^ 1438. Another ill eff*ect of the exclusion would
be depriving the community of the advantage of the
experience, gained by an able chief magistrate in the
exercise of ofl[ice. Experience is the parent of wisdom.
And it would seem almost absurd to say, that it ought
systematically to be excluded from the executive office.
It would be equivalent to banishing merit from the
public councils, because it had been tried. What could
be more strange, than to declare, at the moment, when
wisdom was acquired, that the possessor of it should no
longer be enabled to use it for the very purposes, for
which it was acquired 7 ^
^ 1439. Another ill effect of the exclusion would be,
that it might banish men from the station in certain
emergencies, in which their services might be emi-
nently useful, and indeed almost indispensable for the
safety of their country. There is no nation, which has
not at some period or other in its history felt an ab-
solute necessity of the services of particular men in
particular stations ; and perhaps it is not too much to
say, as vital to the preservation of its political exist-
1 TI.e Federalist, No. 72 ; 2 Elliot's Debates. 358.
2 The Federalist, No. 72 ; 3 Elliot's Debates, 99, 100.
CH. XXXVI.] EXECUTIVE RE-ELIOITJILITY. 305
ence. In a time of war, or other pressing calamity, the
very confidence of a nation in the tried integrity and
ability of a single man may of itself ensure a triumph.
Is it wise to substitute in such cases inexperience for
experience, and to set afloat public opinion, and change
the settled course of administration?^ One should
suppose, that it would be sufficient to possess the right
to change a bad magistrate, without making the sin-
gular merit of a good one the very ground of excluding
him from office.
§ 1440. Another ground against the exclusion was
founded upon our own experience under the state gov-
ernments of the utility and safety of the re -eligibility of
the executive. In some of the states the executive is
re-eligible ; in others he is not. But no person has been
able to point out any circumstance in the administra-
tion of the state governments unfavourable to a re-elec-
tion of the chief magistrate, where the right has con-
stitutionally existed. If there had been any practical
evil, it must have been seen and felt. And the com-
mon practice of continuing the executive in office in
some of these states, and of displacing in others, de-
monstrates, that the people are not sensible of any
abuse, and use their power with a firm and unembar-
rassed freedom at the elections.
§ 1441. It was added, that the advantages proposed
by the exclusion, (1.) greater independence in the ex-
ecutive, (2.) greater security to the people, were not
well founded. The former could not be attained in
any moderate degree, unless the exclusion was made
perpetual. And, if it were, there might be many mo-
tives to induce the execudve to sacrifice his indepen-
1 The Federalist, No. 72; 2 Elliot's Debates, 99, JOG-
VOL. III. 39
306 CO^^STITUTION OF THE U. STATES. [bOOK III.
dence to friends, to partisans, to selfish objects, and
private gain, to the fear of enemies, and the desire to
stand well with majorities. As to the latter supposed
advantage, the exclusion would operate no check upon
a man of irregular ambition, or corrupt principles, and
against such men alone could the exclusion be impor-
tant. In truth, such men would easily find means to
cover up their usurpations and dishonesty under fair
pretensions, and mean subserviency to popular preju-
dices. They would easily delude the people into a be-
hef, that their acts were constitutional, because they
were in harmony with the public wishes, or held out
some specious, but false projects for the public good.
^ 1442. Most of this reasoning would apply, though
with diminished force, to the exclusion for a Umited
period, or until after the lapse of an intermediate elec-
tion to the office. And it would have equally dimin-
ished advantages, with respect both to personal inde-
pendence, and public security. In short, the exclusion,
whether perpetual or temporary, would have nearly the
same effects; and these effects would be generally
pernicious, rather than salutary.^ Re-eligibility natu-
rally connects itself to a certain extent with duration of
office. The latter is necessary to give the officer him-
self the inclination and the resolution to act his part
well, and the community time and leisure to observe
the tendency of his measures, and thence to form an
experimental estimate of his merits. The former is
necessary to enable the people, when they see reason
to approve of his conduct, to conUnue him in the sta-
tion, in order to prolong the utihty of his virtues and
I The Federullst, No. 72 ; Rawle ou the Const, ch. 31, p. 28S, 289.
CH. XXXVI.] EXECUTIVE KE-ELIGJBILITY. 307
talents, and to secure to the government the advantage
of permanence in a wise system of administration/
§ 1443. Still it must be confessed, that where the
duration is for a considerable length of time, the right
of re-election becomes less important, and perhaps less
safe to the public. A president chosen for ten years
might be made ineligible with far less impropriety, than
one chosen for four years. And a president chosen
for twenty years ought not to be again eligible, upon
the plain ground, that by such a term of office his re-
sponsibility would be greatly diminished, and his means
of influence and patronage immensely increased, so as
to check in a great measure the just expression of
public opinion, and the free exercise of the elective
franchise. Whether an intermediate period, say of
eight years, or of seven years, as proposed in the con-
vention, might not be beneficially combined with subse-
quent ineligibility, is a point, upon which great states-
men have not been agreed ; and must be left to the
wisdom of future legislators to w^eigh and decide.^ The
1 The Federalist, No. 72.
2 Mr. Jefferson appears to have entertained the opinion strong!}', that
the chief magistrate ought to be ineligil)Ie after one term of office.
"Reason and experience tell us," says he, " that the chief magistrate
will always be re-elected, if he may be re-elected. He is tlien an
officer for life. This once observed, it becomes of so much consequence
to certain nations to have a friend or a foe at the head of our affairs, that
they will interfere with money and with arms, &,c. The election of a
president of America some years hence will be much more interesting to
certain nations of Europe, than ever the election of a king of Poland was."
(Letter to Mr. Madison in 17S7, 2 Jeffer. Cor. 274, 275) lie added in the
same letter : " The power of removing every fourth year by tlie vote of
the people is a power, which they will not exercise ; and if they were dis-
posed to exercise it, they Vvould not be permitted."* How little has this
reasoning accorded with the fact! ! In the memoir written by him to-
wards the close of his life, he says : " My vv'ish was, that the president
* See also 2 Jcffurson's Corrosp. 291, 439, 410, 443v
308 CONSTITUTION OF THE U. STATES. [bOOK ill.
inconvenience of such frequently recurring elections of
the chief magistrate, by generating factions, combining
intrigues, and agitating the public mind, seems not
hitherto to have attracted as much attention, as it de-
serves. One of two evils may possibly occur from this
source ; either a constant state of excitement, v^hich
will prevent the fair operation of the measures of an
administration ; or a growing indifference to the elec-
tion, both on the part of candidates and the people,
which will surrender it practically into the hands of the
selfish, the office-seekers, and the unprincipled devo-
tees of power. It has been justly remarked by Mr.
Chancellor Kent, that the election of a supreme execu-
tive magistrate for a whole nation affects so many in-
terests, addresses itselt so strongly to popular passions,
and holds out such powerful temptations to ambition,
that it necessarily becomes a strong trial to public vir-
tue, and even hazardous to the pubhc tranquillity.^
§ 1444. The remaining part of the clause respects
the Vice-President. If such an officer was to be cre-
ated, it is plain, that the duration of his office should
be co-extensive with that of the president. Indeed, as
we shall immediately see, the scheme of the govern-
ment necessarily embraced it ; for when it was decided,
that two persons were to be voted for, as president, it
was decided, that he, who had the greatest number of
should be elected for seven years, and be ineligible afterwards. This
term I thought sufficient to enable him, with the concurrence of the legis-
lature, to carry through and establish any system of improvement he
should propose for the general good. But the practice adopted, I think,
is better, allowing his continuance for eight years, with a liability to be
dropped at halfway of the term, making that a period of probation."
1 Jefferson's Corresp. G4,65. See also 1 Tucker's Black. Comm. App.
328, 329.
1 1 Kent's Comm. Lect. 13, p. 257.
CH. XXXVI.] EXECUTIVll VICK-PRESIDENT. :i09
votes of the electors, after the person chosen as presi-
dent, should be vice-president. The principal question,
therefore, was, whether such an oflicer ought to be
created. It has been already stated, that the original
scheme of the government did not provide for such an
officer. By that scheme, the president was to be cho-
sen by the national legislature.^ When afterwards an
election by electors, chosen directly or indirectly by the
people, was proposed by a select committee, the choice
of a vice-president constituted a part of the proposi-
tion ; and it was finally adopted by the vote of ten
states against one.^
^ 1445. The appointment of a vice-president was
objected to, as unnecessary and dangerous. As pres-
ident of the senate, he would be entrusted with a pow-
er to control the proceedings of that body ; and as he
must come from some one of the states, that state
would have a double vote in the body. Besides, it
was said, that if the president should die, or be remov-
ed, the vice-president might, by his influence, prevent
the elecdon of a president. But, at all events, he was
a superfluous officer, having few duties to perform,
and those might properly devolve upon some other
established officer of the government.^
§ 1446. The reasons in favour of the appointment
were, in part, founded upon the same ground as the
objections. It was seen, that a presiding officer must
be chosen for the senate, where all the states were
equally represented, and where an extreme jealousy
might naturally be presumed to exist of the preponder-
1 Journal of Convention, 68, 92, 136, 224.
2 Journal of Convention, 323, 32^, 333, 337.
3 See 2 Elliot's Deb. 359, 361 ; The Federalist, No. 68.
310 CONSTITUTION OF THE U. STATES. [bOOK III.
ating influence of any one state. If a member of the
senate were appointed, either the state would be de-
prived of one vote, or would enjoy a double vote in
case of an equality of votes, or there would be a tie,
and no decision. Each of these alternatives was
equally undesirable, and might lay the foundation of
great practical inconveniences. An officer, therefore,
chosen by the whole Union, would be a more suitable
person to preside, and give a casting vote, since he
would be more free, than any member of the senate,
from local attachments, and local interests ; and being
the representative of the Union, would naturally be
induced to consult the interests of all the states.^
Having only a casting vote, his influence could only
operate exactly, when most beneticial ; that is, to pro-
cure a decision. A still more important consideration
is the necessity of providing some suitable person to
perform the executive functions, when the president
is unable to perform them, or is removed from of-
fice. Every reason, which recommends the mode
of election of the president, prescribed by the constitu-
tion, with a view either to dignity, independence, or
personal qualifications for office, applies with equal
force 10 the appointment of his substitute. He is to
perform the same duties, and to possess the same
rights ; and it seems, if not indispensable, at least pe-
culiarly proper, that the choice of the person, who should
succeed to the executive functions, should belong to
the people at large, rather than to a select body chosen
for another purpose. If (as was suggested) the presi-
dent of the senate, chosen by that body, might have
been designated, as the constitutional substitute ; it is
1 3 Elliot's Del). 37, 38, 51, 52; The Federalist, No. G8.
CH. XXXVI.] EXECUTIVE-CHOICE OF niESIDE^'T. 311
by no means certain, that he would either possess so
high qualifications, or enjoy so much public confidence,
or feel so much responsibility for his conduct, as a vice-
president selected directly by and from the people.
The president of the senate would generally be select-
ed from other motives, and with reference to other
qualifications, than what ordinarily belonged to the ex-
ecutive department. His political opinions might be in
marked contrast with those of a majority of the nation ;
and while he might possess a just influence in the sen-
ate, as a presiding officer, he might be deemed wholly
unfit for the various duties of the chief executive magis-
trate. In addidon to these considerations, there was
no novelty in the appointment of such an officer for
similar purposes in some of the state governments ; ^
and it therefore came recommended by experience, as
a safe and useful arrangement, to guard the people
against the inconveniences of an interregnum in the
government, or a devolution of power upon an officer,
who was not their choice, and might not possess their
confidence.
^ ] 447. The next clause embraces the mode of
election of the President and Vice-President ; and al-
though it has been repealed by an amendment of the
constitution, (as will be hereafter shown,) yet it still de-
serves consideration, as a part of the original scheme,
and m.ore especially, as very grave doubts have been en-
tertained, whether the substitute is not inferior in wis-
dom and convenience.
§ 1448. The clause is as follows: "Each state
" shall appoint in such manner, as the legislature there-
"of may direct, a number of electors, equal to the
1 The Federjilist, No. G8.
312 CONSTITUTION OF THE U. STATES. [bOOK III.
"whole number of senators and representatives, to
" which the state may be entitled in the congress. But
"no senator, or representative, or person holding an
"office of trust or profit under the United States, shall
"be appointed an elector.
" The electors shall meet in their respective states,
"and vote by ballot for two persons, of whom one at
" least shall not be an inhabitant of the same state with
" themselves. And they shall make a Kst of all the
" persons voted for, and of the number of votes for each ;
" which list they shall sign and certify, and transmit,
" sealed, to the seat of the government of the United
" States, directed to the president of the senate. The
" president of the senate shall, in the presence of the
" senate and house of representatives, open all the cer-
" tificates, and the votes shall then be counted. The
"person- having the greatest number of votes shall be
" the president, if such number be a majority of the
" whole number of electors appointed ; and if there be
" more than one, who have such majority and have an
" equal number of votes, then the house of representa-
" tives shall immediately choose by ballot one of them
"for president ; and if no person have a majority, then
" from the five highest on the Ust the said house shall
" in like manner choose the president. But in choos-
" ing the president, the votes shall be taken by states,
" the representation from each state having one vote ;
" a quorum for this purpose shall consist of a member
" or members from two-thirds of the states, and a ma-
" jority of all the states shall be necessary to a choice.
" In every case, after the choice of the president, the
"person having the greatest number of votes of the
"electors shall be the vice-president. But if there
" should remain two or more, who have equal votes,
CH. XXXVI.] EXECUTIVE-CHOICE OF PRESIDENT. 13 1 3
"the senate shall choose from them by ballot the vice-
-president."
§ 1449. It has been already remarked, that origin-
ally in the convention the choice of the president was,
by a vote of eight states against two, given to the na-
tional legislature.^ This mode of appointment, how-
ever, does not seem to have been satisfactory ; for a
short time afterwards, upon a reconsideration of the
subject, it was voted, by six states against three, one
being divided, that the president should be chosen by
electors appointed for that purpose ; and by eight states
against two, that the electors should be chosen by the
legislatures of the states.^ Upon a subsequent discus-
sion, by the vote of seven states against four, the
choice was restored to the national legislature.^ To-
wards the close of the convention the subject was
referred to a committee, who reported a scheme,
in many respects, as it now stands. The clause,
as to the mode of choice by electors, w^as carried, by
the vote of nine states against two ; that respect-
ing the time, and place, and manner of voting of the
electors, by ten states against one ; that respecting
the choice by the house of representauves, in case no
choice was made by the people, by ten states against
one.^
^ 1450. One motive, w^hich induced a change of the
choice of the president from the national legislature,
unquestionably w^as, to have the sense of the people
1 Journal of Convention, G8, 92, 13l3, 224, 225 ; Id. 286, 2S7.
2 Journal of Convention, J90, 191.
3 Id. 200. See Id. 286, 287.
4 Journal of Convention, :{24, :]r{3, 334, 335, 330, .337. — The commit-
tee of tiie convention reported in favour of a choice by the senate, in case
there was none by the people. Journal of Convention, 325.
VOL. III. 40
314 CONSTITUTION OF THE U. STATES. [bOOK III.
operate in the choice of the person, to whom so import-
ant a trust was confided. This would ,be accomphsh-
ed much more perfectly by commitdng the right of
choice to persons, selected for that sole purpose at the
particular conjuncture, instead of persons, selected for
the general purposes of legislation.^ Another motive
was, to escape from those intrigues and cabals, which
would be promoted in the legisladve body by artful
and designing men, long before the period of the choice,
with a view to accomplish their own selfish purposes.^
The very circumstance, that the body entrusted with
the power, was chosen long before the presidential
election, and for other general functions, would facili-
tate every plan to corrupt, or manage them. It would
be in the power of an ambitious candidate, by holding
out the rewards of office, or other sources of patronage
and honour, silently, but irresistibly to influence a ma-
jority of votes; and thus, by his own bold and unprinci-
pled conduct, to secure a choice, to the exclusion of the
highest, and purest, and most enlightened men in the
country. Besides ; the very circumstance of the pos-
session of the elective power would mingle itself with
all the ordinary measures of legislation. Compromises
and bargains would be made, and laws passed, to grat-
ify particular members, or conciliate particular inter-
ests ; and thus a disastrous influence would be shed
over the whole policy of the government. The presi-
dent would, in fact, become the mere tool of the dom-
inant party in congress ; and would, before he occupied
the seat, be bound down to an endre subserviency to
their views.^ No measure would be adopted, which
1 The Federalist, No. 68. 2 2 Wilson's Law Lect. 187.
3 Ravvle on the Constitution, ch. 5, p. 58.
CH. XXXVI.] EXECUTIVE-CHOICE OF PRESIDENT. 315
was not, in some degree, connected with the presiden-
tial election ; and no presidential election made, but
what would depend upon artificial combinations, and a
degrading favouritism.^ There would be ample room for
the same course of intrigues, which has made memo-
rable the choice of a king in the Polish diet, of a chief
in the Venetian senate, and of a pope in the sacred
college of the Vatican.
§ 1451. Assuming that the choice ought not to be
confided to the national legislature, there remained
various other modes, by which it might be effected ;
by the people direcdy ; by the state legislatures ; or
by electors, chosen by the one, or the other. The lat-
ter mode was deemed most advisable ; and the reason-
ing, by which it was supported, was to the following
effect. The immediate election should be made by
men, the most capable of analyzing the qualities adapt-
ed to the station, and acting under circumstances
favourable to deliberation, and to a judicious combina-
tion of all the inducements, which ought to govern
their choice. A small number of persons, selected by
their fellow citizens from the general mass for this spe-
cial object, would be most likely to possess the informa-
tion, and discernment, and independence, essential for
the proper discharge of the duty.^ It is also highly im-
portant to afford as litde opportunity, as possible, to tu-
mult and disorder. These evils are not unlikely to oc-
cur in the election of a chief magist^-ate directly by the
people, considering the strong excitements and interests,
which such an occasion may naturally be presumed
to produce. The choice of a number of persons, to
1 See 1 Kent's Comm. Lect. 13, p. 261, 2G2.
2 The Federalist, No. 68.
316 COXSTITUTION OF THE U. STATFS. [bOOK III.
form an intermediate body of electors, would be far
less apt to convulse the community with any extraor-
dinary or violent movements, than the choice of one,
who was himself the final object of the public wishes.
And as the electors chosen in each state are to assem-
ble, and vote in the state, in which they are chosen,
this detached and divided situation would expose
them much less to heats and ferments, which might be
communicated from them to the people, than if they
were all convened at one time in one place.^ The
same circumstances would naturally lessen the dangers
of cabal, intrigue, and corruption, especially, if congress
should, as they undoubtedly would, prescribe the same
day for the choice of the electors, and for giving their
v( tes throughout the United States. The scheme,
indeed, presents every reasonable guard against these
fatal evils to republican governments. The appoint-
ment of the president is not made to depend upon any
pre-existing body of men, who might be tampered with
beforehand to prostitute their votes ; but is delegated
to persons chosen by the immediate act of the people,
for that sole and temporary purpose. All those persons,
who, from their situation, might be suspected of too
great a devotion to the president in office, such as sen-
ators, and representatives, and other persons holding
offices of trust or profit under the United States, are
excluded from eligibility to the trust. Thus, without
corrupting the body of the people, the immediate agents
in the election may be fairly presumed to enter upon
their duty free from any sinister bias. Their transi-
tory existence, and dispersed situation would present
formidable obstacles to any corrupt combinations; and
1 The Federalist, No. 68 ; 1 Kent's Cornm. Lect. 13, p. 261, 262.
CH. XXXVI.] EXECUTIVE-CHOICE OF PRESIDENT. .317
time, as well as means, would be wanting to accomplish,
by bribery or intrigue of any considerable number, a
betrayal of their duty.^ The president, too, who should
be thus appointed, Avould be lar more independent, than
if chosen by a legisladve body, to whom he might be
expected to make correspondent sacrifices, to gratify
their wishes, or reward their services.^ And on the
other hand, being chosen by the voice of the people,
his gratitude w ould take the natural direction, and sed-
ulously guard their rights.^
1 The Federalist, No. 68 ; 1 Tuck. Black. Comm. App. 326, 327 ;
2 Wilson's Law Lect. 187, 188, 189.
2 Id.
3 In addition to these grounds, it has been suggested, that a "still
greater and more insuperable difficulty against a choice directly by the
people, as a single community, was, that such a measure would be an
entire consolidation of the government of tiie country, and an annihi-
lation of the state sovereignties, so far as concerned the organization of
the executive department of the Union. This was not to be permitted,
or endured; and it would, besides, have destroyed the balance of the
Union, and reduced the weight of the slave-holding states to a degree,
which they would have deemed altogether inadmissible. 1 Kent's
Comm. Lect. 13, p. 261. It is not perceived, how either of these results
could have taken place, unless upon some plan, (which was never pro-
posed,) which should disregard altogether the existence of the states,
and take away -ill representation of the slave population. The choice
might have been directly by the people without any such course. And
in point of fact, such an objection, as that suggested by Mr. Chancellor
Kent, to a choice by the people, does not seem to have occurred to tjje
authors of the Federalist. If the choice had been directly by the peo-
ple, each state having as many votes for president, as it would be enti-
tled to electors, the result would have been exactly, as it now is. If
each state had been entitled to one vote, only, then the state sovereign-
ties would have been completely represented by the people of each
state upon an rquality. If the choice had been by the people in districts,
according to the ratio of representation, then the president would have
been chosen by a majority of the people in a majority of the representa-
tive districts. There would be no more a consolidation, than there now
is in the house of representatives. In neither view could there be any
injurious inequality bearing on the Southern states.
318 CONSTITUTIOISr OF THE U. STATES. [bOOK III.
§ 1 452. The other parts of the scheme are no less
entitled to commendation. The number of electors
is equal to the number of senators and representatives
of each state ; thus giving to each state as virtual a repre-
sentation in the electoral colleges, as that, which it en-
joys in congress. The votes, when given, are to be
transmitted to the seat of the national government, and
there opened and counted in the presence of both
houses. The person, having a majority of the whole
number of votes, is to be president. But, if no one of
the candidates has such a majority, then the house of
representatives, the popular branch of the government,
is to elect from the five highest on the list the person,
whom they may deem best quaUfied for the office, each
state having one vote in the choice. The person, who
has the next highest number of votes after the choice
of president, is to be vice-president. But, if two or
more shall have equal votes, the senate are to choose
the vice-president. Thus, the ultimate functions are to
be shared alternately by the senate and representatives
in the organization of the executive department.^
^ 1453. "This process of election," adds the Fed-
eralist, with a somewhat elevated tone of satisfaction,
" affords a moral certainty, that the office of president
will seldom fall to the lot of a man, who is not in an
eminent degree endowed with the requisite qualifica-
1 Mr. Chancellor Kent has summed up the g'eneral arguments in fa-
vour of an election by electors with great felicity. 1 Kent's Comm.
Lect. 13, p. 2G1, 2G'2. And the subject of the organization of the exec-
utive department is also explained, with much clearness and force, by the
learned editor of Blackstone's Commentaries, and by Mr. Rawle in his
valuable labours. 1 Tucker's Black. Comm. App. 325 to 328; Rawle
on Constitution, ch. 5, p. .51 to 55 ; 2 Wilson's Law Lectures, 186 to
189.
CH. XXXVI.] EXECUTIVE -CHOICE OF PRESIDENT. 319
tions. Talents for low intrigue, and the little arts of
popularity, may alone suffice to elevate a man to the
first honours of a single state. But it will require other
talents, and a different kind of merit to establish him in
the esteem, and confidence of the whole Union, or of
so considerable a portion of it, as will be necessary
to make him a successful candidate for the distinguished
office of president of the United States. It will not be
too strong to say, that there will be a constant proba-
bility of seeing the station filled by characters pre-
eminent for ability and virtue. And this will be thought
no inconsiderable recommendation of the constitution
by those, who are able to estimate the share, which the
executive in every government must necessarily have
in its good or ill administration." ^
§ 1454. The mode of election of the president thus
provided for has not wholly escaped censure, though
the objections have been less numerous, than those
brought against many other parts of the constitution,
touching that department of the government.^
§ 1455. One objection was, that he is not chosen di-
rectly by the people, so as to secure a proper depend-
ence upon them. And in support of this objection it
has been urged, that he will in fact owe his appoint-
ment to the state governments ; for it will become the
policy of the states, which cannot directly elect a presi-
dent, to prevent his election by the people, and thus to
throw the choice into the house of representatives,
where it will be decided by the votes of states.^
Again, it was urged, that this very mode of choice by
states in the house of representatives is most unjust
1 The Federalist, No. 68.
2 See The Federalist, No. 68 ; 2 Elliot's Debates, 360 to 363.
3 2 Elliot's Debates, 360, 361.
320 COXSTITUTION OF THE U. STATES. [bOOK III.
and unequal. Why, it has been said, should Delaware,
with her single representative, possess the same vote
with Virginia, with ten times that number? ^ Besides ;
this mode of choice by the house of representatives will
give rise to the worst intrigues ; and if ever the arts of
corruption shall prevail in the choice of a president,
they will prevail by first throwing the choice into the
house of representatives, and then assailing the virtue,
and independence of members holding the state vote,
by all those motives of honour and reward, which can
so easily be applied by a bold and ambitious candidate.^
^ 1456. The answer to these objections has been
already in a great measure anticipated in the preceding
pages. But it was added, that the devolution of the
choice upon the house of representatives was inevita-
ble, if there should be no choice by the people ; and it
could not be denied, that it was a more appropriate
body for this purpose, than the senate, seeing, that the
latter were chosen by the state legislatures, and the
former by the people. Besides ; the connexion of the
senate with the executive department might naturally
produce a strong influence in favour of the existing
executive, in opposition to any rival candidate.^ The
mode of voting by states, if the choice came to the
house of representatives, was but a just compensation
to the smaller states for their loss in the primary elec-
tion. When the people vote for the president, it is
manifest, that the large states enjoy a decided advan-
tage over the small states ; and thus their interests may
be neglected or sacrificed. To compensate them for
this in the eventual election by the house of represen-
1 1 Tnckors Black. Comm. A pp. '327.
2 1 Tucker's Black. Comm. App. 327, 328.
3 1 Tucker's Black. Comm. App. 327, 328.
CH. XXXVI.] EXECUTIVE-CHOICE OF PRESIDENT. 321
tatives, a correspondent advantage is given to the small
states. It was in fact a compromise.^ There is no
injustice in this ; and if" the people do not elect a presi-
dent, there is a greater chance of electing one in this
mode, than there would be by a mere representative
vote according to numbers ; as the same divisions would
probably exist in the popular branch, as in their respec-
tive states.^
§ 1457. It has been observed with much point, that
in no respect have the enlarged and liberal views of the
framers of the constitution, and the expectations vf the
public, when it was adopted, been so completely frus-
trated, as in the practical operation of the system, so
far as relates to the independence of the electors in the
electoral colleges.^ It is notorious, that the electors
are now chosen wholly with reference to particular
candidates, and are silently pledged to vote for them.
Nay, upon some occasions the electors publicly pledge
themselves to vote for a particular person ; and thus, in
effect, the whole foundation of the system, so elabo-
rately constructed, is subverted.^ The candidates for
the presidency are selected and announced in each
state long before the election ; and an ardent canvass is
maintained in the newspapers, in party meetings, and
in the state legislatures, to secure votes for the favour-
ite candidate, and to defeat his opponents. Nay, the
state legislatures often become the nominating body,
acting in their official capacities, and recommending by
solemn resolves their own candidate to the other states.^
So, that nothing is left lo the electors after their choice,
1 2 Elliot's Debates, 3i)4. '-' Rawle on Constitution, ch. 5, p. 54.
3 Rauie on Constitution, ch. 5, p. 57, .58. 'i Ibid.
5 Ibid. — A practice, which has been censured by some persons, as
still more alarming, is the nomination of the president by members of
VOL. III. 41
322 CONSTITUTION OF THE U. STATES. [bOOK III.
but to register votes, which are already pledged ; and
an exercise of an independent judgment would be
treated, as a political usurpation, dishonourable to the
individual, and a fraud upon his constituents.
§ 1458. The principal difficulty, which has been felt
in the mode of election, is the constant tendency, from
the number of candidates, to bring the choice into the
house of representatives. This has already occurred
twice in the progress of the government ; and in the
future there is every probability of a far more frequent
occurrence. This was early foreseen ; and, even in
one of the state conventions, a most distinguished states-
man, and one of the framers of the constitution, admit-
ted, that it would probably be found impracticable to
elect a president by the immediate suffrages of the
people ; and that in so large a country many persons
would probably be voted for, and that the lowest of the
five highest on the list might not have an inconsidera-
ble number of votes.^ It cannot escape the discern-
ment of any attentive observer, that if the house of
representatives is often to choose a president, the
choice will, or at least may, be influenced by many
motives, independent of his merits and qualifications.
There is danger, that intrigue and cabal may mix in
the rivalries and strife.^ And the discords, if not
the corruptions, genei'ated by the occasion, will proba-
bly long oudive the immediate choice, and scatter their
pestilential influences over all the great interests of the
country. One fearful crisis was passed in the choice
congress al political meetings at WKshington ; thus, in the mild form of
recommenflation introducing their votes into the election with all their
official influence. Rawle on Const, ch. 5, p. 58.
1 xMr. Madison, 2 Elliot's Debates, '364.
2 1 Tucker's JUack. Comm. App. '627 ; 1 Kent's Comm. Lect. 13,
p. 2J1.
CH. XXXVI.] EXECUTIVE-CHOICE OF PRESIDENT. 323
of Mr. Jefferson over his competitor, Mr. Burr, in 1801,
which threatened a dissolution of the government, and
put the issue upon the tried patriotism of one or two
individuals, who yielded from a sense of duty their
preference of the candidate, generally supported by their
friends.^
§ 1459. Struck with these difficulties, it has been a
favourite opinion of many distinguished statesmen,
especially of late years, that the choice ought to be
directly by the people in representative districts, a
measure, which, it has been supposed, would at once
facihtate a choice by the people in the first instance,
and interpose an insuperable barrier to any general
corruption or intrigue in the elecdon. Hitherto this
plan has not possessed extensive public favour. Its
merits are proper for discussion elsewhere, and do not
belong to these Commentaries.
^ 1460., The issue of the contest of 1801 gave rise
1 1 Kent's Comm. Lcct. 13, p. 2G2.
2 Allusion is here especially made to the late Mr. Bayard, who held
the vote of Delaware, and who, by his final vote in favour of Mr. Jeffer-
son, decided the election. It was remarked at the time, that in the elec-
tion of Mr. Jefferson, in 1801, the votes of two or three states were held
by persons, who soon afterwards received office from him. The circum-
stance is spoken of in positive terms by Mr. Bayard, in his celebrated
Speech on the Judiciary, in 1802.'^ Mr. Bayard did not make it matter
of accusation against Mr. Jefferson, as founded in corrupt bargaining-.
Nor has any such charge been subsequently made. The fact is here
stated merely to show, how peculiarly delicate the exercise of such
functions necessarily is ; and how difficult it may be, even for the most
exalted and pure executive, to escape suspicion or reproach, when he is
not chosen directly by the people. Similar suggestions will scarcely
ever fail of being made, whenever a distinguished representative obtains
office after an election of president, to which he has contributed. The
learned editor of Blackstone's Commentaries has spoken with exceed-
ing zeal of the dangers arising from the intrigues and cabals of an elec-
tion by the house of representatives, 1 Tucker's Black. Comm. App.
327.
♦ Debates on the Judiciary, printed by Whitney & Co., Albany, 1802, p. 418, 419.
324 CONSTITUTION OF THE U. STATES. [bOOK III.
to an amendment of the constitution in several respects,
materially changing the mode of election of president.
In the first place it provides, that the ballots of the elec-
tors shall be separately given for president and vice-
president, instead of one ballot for two persons, as
president ; that the vice-president (like the president)
shall he chosen by a majority of the whole number of
electors appointed ; that the number of candidates, out
of w^hom the selection of president is to be made by
the house of representatives, shall be three, instead of
five ; that the senate shall choose the vice-president
from the two highest numbers on the list ; and that, if
no choice is made of president before the fourth of
March following, the vice-president shall act as presi-
dent.
§ 1461. The amendment was proposed in October,
1803, and was ratified before September, 1804,^ and is
in the following terms.
" The electors shall meet in their respective states,
" and vote by ballot for president and vice-president,
" one of whom, at least, shall not be an inhabitant of
"the same state with themselves; they shall name in
" their ballots the person voted for as president, and in
" distinct ballots the person voted for as vice-president;
" and they shall make distinct fists of aU persons voted
" for as president, and of all persons voted for as vice-
" president, and of the number of votes for each ; which
" lists they shall sign and certify, and transmit sealed
" to the seat of government of the United States ;
" directed to the president of the senate ; — the presi-
" dent of the senate shall, in the presence of the senate
" and house of representatives, open all the certificates,
1 Journal of Convention, Supp. 484, 488.
CH. XXXVI.] EXECUTIVE-CHOICE OF PRESIDENT. ']25
" and the votes shall then be counted ; the person hav-
" ing the greatest number of votes lor president shall
" be the president, if such number be a majority of the
" whole number of eleciors appointed ; and if no person
" have such majority, then from the persons having the
" highest numbers, not exceeding three, on the list of
" those voted for as president, the house of repre-
" sentatives shall choose immediately, by ballot, the
"president. But in choosing the president, the votes
" shall be taken by states, the representation from each
" state having one vote ; a quorum for this purpose
" shall consist of a member, or members, from Uvo-
" thirds of the states, and a majority of all the states
" shall be necessary to a choice. And if the house of
" representatives shall not choose a president, whenever
" the right of choice shall devolve upon them, before
" the fourth day of March next following, then the vice-
" president shall act as president, as in the case of the
" death or other constitutional disability of the presi-
« dent.
" The person, having the greatest number of votes
" as vice-president, shall be the vice-president, if such
" number be a majority of the whole number of elec-
" tors appointed ; and if no person have a majority,
" then from the two highest numbers on the list, the
" senate shall choose the vice-president ; a quorum for
" the purpose shall consist of two-thirds of the whole
"number of senators, and a majority of the whole
" number shall be necessary to a choice.
"But no person, constitutionally ineligible to the
" office of president, shall be eligible to that of vice-
" president of the United States."
^ 1462. This amendment has alternately been the
subject of praise and blame, and experience alone can
326 COXSTITUTION OF THE U. STATES. [bOOK III.
decide, whether the changes proposed by it are in all
respects for the better, or the worse.^ In some respects
it is a substantial improvement. In the first place,
under the original mode, the senate was restrained
from acting, until the house of representatives had made
their selection, which, if parties ran high, might be
considerably delayed. By the amendment the senate
may proceed to a choice of the vice-president, imme-
diately on ascertaining the returns of the votes.^ In
the next place, under the original mode, if no choice
should be made of a president by the house of repre-
sentatives until after the expiration of the term of the
preceding officer, there would be no person to perform
the functions of the office, and an interregnum would
ensue, and a total suspension of the powers of gov-
ernment.^ By the amendment, the new vice-president
would in such case act as president. By the original
mode, the senate are to elect the vice-president by
ballot ; by the amendment, the mode of choice is left
open, so that it may be vwci voce. Whether this be
an improvement, or not, may be doubted.
^ 1463. On the other hand, the amendment has
certainly greatly diminished the dignity and importance
of the office of vice-president. Though the duties
remain the same, he is no longer a competitor for the
presidency, and selected, as possessing equal merit,
talents, and qualifications, with the other candidate.
As every state was originally compelled to vote for two
candidates (one of whom did not belong to the state)
1 1 Kent's Comm. Lect. 13, p. 262 ; Rawle on Const, ch. 5, p. 54, 55.
2 Rawle on Const, ch. 5, p. 54 : J Kent's Comm. Lect. 13, p. 260.
3 Mr. Rawle is of opinion, that the old vice-president would, under the
old mode, act as president in case of a non-election of president. I can-
not find in the constitution any authority for such a position. Rawle on
Const, ch. 5, p. 54. See also Act of Congress, 1st March, 1792, ch. 8.
CH. XXXVI.] EXECUTIVE-CHOICE OF PRESIDENT. 327
for the same office, a choice was fairly given to all other
states to select between them ; thus exc uding the
absolute predominance of any local interest, or local
partiality.
§ 1464. In the original plan, as well as in the amend-
ment, no provision is made for the discussion or decis-
ion of any questions, which may arise,as to the regularity
and authenticity of the returns of the electoral votes,
or the right of the persons, who gave the votes, or the
manner, or circumstances, in which they ought to be
counted. It seems to have been taken for granted,
that no question could ever arise on the subject ; and
that nothing more was necessary, than to open the
certificates, which were produced, in the presence of
both houses, and to count the names and numbers, as
returned. Yet it is easily to be conceived, that very
delicate and interesting inquiries may occur, fit to be
debated and decided by some deliberative body.^ In
fact, a quesdon did occur upon the counting of the
votes for the presidency in 1821 upon the re-election
of Mr. Monroe, whether the votes of the state of Mis-
souri could be counted ; but as the count would make
no difference in the choice, and the declaration was
made of his re-election, the senate immediately with-
drew ; and the jurisdiction, as well as the course of
proceeding in a case of real controversy, was left in a
most embarrassing situation.
^ 1465. Another defect in the constitution is, that
no provision was originally, or is now made, for a case,
where there is an equality of votes by the electors for
more persons, than the constitutional number, from
which the house of representatives is to make the
election. The language of the original text is, that
1 See 1 Kent'e Comm. Lert 13, p. 258, 259.
328 CONSTITUTION OF THE U. STATES. [bOOK III.
the house shall elect "from the five highest on the
list." Suppose there were six candidates, three of whom
had an equal number; who are to be preferred? The
amendment is, that the house shall elect "from the
"persons having the highest numbers, not exceeding
" three." Suppose there should be four candidates,
two of whom should have an equality of votes ; who
are to be preferred? Such a case is quite within the
range of pi obability ; and may hereafter occasion very
serious dissensions. One object in lessening the num-
ber of the persons to be balloted for from five to three,
doubtless was, to take away the chance of any person
having very few votes from being chosen president
against the o:eneral sense of the nation.' Yet it is
obvious now, that a person having but a very small
number of electoral votes, might, under the present
plan, be chosen president, if the other votes were divid-
ed between two eminent rival candidates ; the friends
of each of whom might prefer any other to such rival
candidate. Nay, their very hostility to each other
might combine them in a common struggle to throw
the final choice upon the third candidate, whom they
might hope to control, or fear to disoblige.
^ 1466. It is observable, that the language of the
constitution is, that "each state shall appoint in such
" manner, as the legislature thereof may direct," the
number of electors, to which the state is entitled. Un-
der this authority the appointment of electors has been
variously provided for by the state legislatures. In
some states the legislature have directly chosen the
electors by themselves ; in others they have been cho-
sen by the people by a general ticket throughout the
whole state ; and in others by the people in electoral
1 2 Elliot's Debates, 362, 363.
CH. XXX VJ.] EXECUTIVE TIME OF ELECTING. 329
districts, fixed by the legislature, a certain number of
electors being apportioned to each district.^ No ques-
tion has ever arisen, as to the constitutionality of either
mode, except that of a direct choice by the legislature.
But this, though often doubted by able and ingenious
minds,^ has been firmly established in practice, ever
since the adoption of the constitution, and does not
now seem to admit of controversy, even if a suitable
tribunal existed to adjudicate upon it.^ At present, in
nearly all the states, the electors are chosen either by
the people by a general ticket, or by the state legis-
lature. The choice in districts has been gradually
abandoned; and is now persevered in, but by two
states.^ The inequaHty of this mode of choice, unless
it should become general throughout the Union, is
so obvious, that it is rather matter of surprise, that it
should not long since have been wholly abandoned. In
case of any party divisions in a state, it may neutrahze
its whole vote, while all the other states give an un-
broken electoral vote. On this account, and for the
sake of uniformity, it has been thought desirable by
many statesmen to have the constitution amended so, as
to provide for an uniform mode of choice by the people.
§ 1467. The remaining part of the clause, which
precludes any senator, representative, or person hold-
ing an office of trust or profit under the United States,
from being an elector, has been already alluded to, and
requires Kttle comment. The object is, to prevent
persons holding public stations under the government
of the United States, from any direct influence in the
i 1 Tuck. Black. Comm. App. 326.
2 See 3 Elliot's Debates, 100, 101.
3 Sec 2 Wilson's Law Lect. 187.
4 See Rawle on Const, ch. 5, p. 55.
VOL. III. 42
330 CONSTITUTION OF THE U. STATES. [bOOK III.
choice of a president. In respect to persons holding
office, it is reasonable to suppose, that their partialities
would all be in favour of the re-election of the actual
incumbent, and they might have strong inducements
to exert their official influence in the electoral college.
In respect to senators and representatives, there is this
additional reason for excluding them, that they would be
already committed by their vote in the electoral col-
lege ; and thus, if there should be no election by the
people, they could not bring to the final vote either the
impartiality, or the independence, which the theory of
the constitution contemplates.
§ 1468. The next clause is, "The congress may
" determine the time of choosing the electors, and the
" day, on which they shall give their votes, which day
" shall be the same throughout the United States."
^ 1469. The propriety of this power would seem to
be almost self-evident. Every reason of pubhc policy
and convenience seems in favour of a fixed time of
giving the electoral votes, and that it should be the
same throughout the Union. Such a measure is calcu-
lated to repress political intrigues and speculations,
by rendering a combination among the electoral col-
leges, as to their votes, if not utterly impracticable, at
least very difficult ; and thus secures the people against
those ready expedients, which corruption never fails to
employ to accomplish its designs.-^ The arts of ambi-
tion are thus in some degree checked, and the inde-
pendence of the electors against external influence in
some degree secured. This power, however, did not
escape objection in the general, or the state conventions,
though the objection was not extensively insisted on.^
1 3 Elliot's Debates, 100. 10 J.
2 Journal of Convention, o-25, 331, 333, 335 ; 3 Elliot's Deb. 100, 101.
CH. XXXVl.] EXECUTIVE QUALIFICATIONS. 331
§ 1470. In pursuance of the authority given by this
clause, congress, in 1792, passed an act declaring, that
the electors shall be appointed in each state within
thirty-four days, preceding the first Wednesday in De-
cember in every fourth year, succeeding the last elec-
tion of president, according to the apportionment of
representatives and senators then existing. The elec-
tors chosen are required to meet and give their votes on
the said first Wednesday of December, at such place in
each state, as shall be directed by the legislature there-
of. They are then to make and sign three certificates
of all the votes by them given, and to seal up the same,
certifying on each, that a list of the votes of such state
for president and vice-president is contained therein,
and shall appoint a person to take charge of, and deliver,
one of the same certificates to the president of the senate
at the seat of government, before the first W^ednesday
of January then next ensuing ; another of the certificates
is tobe forwarded forthwith by the post-ofiice to the pres-
ident of the senate at the seat of government ; and the
third is to be deUvered to the judge of the district, in
which the electors assembled.^ Other auxiliary provi-
sions are made by the same act for the due transmission
and preservation of the electoral votes; and authenticat-
ing the appointment of the electors. The president's
term of office is also declared to commence on the fourth
day of March next succeeding the day, on which the
votes of the electors shall be given.^
§ 1471. The next clause respects the qualifications
of the president of the United States. " No person,
" except a natural born citizen, or a citizen of the
" United States at the time of the adoption of this con-
" stitution, shall be eligible to the office of president,
1 Act of J St March, 1792, ch. 8. 2 ibid.
332 CONSTITUTION OF THE U. STATES. [bOOK III.
" Neither shall any person be eligible to that office,
" who shall not have attained to the age of thirty-five
"years, and been fourteen years a resident within the
"United States."
§ 1472. Considering the nature of the duties, the
extent of the information, and the solid wisdom and
experience required in the executive department, no
one can reasonably doubt the propriety of some qual-
ification of age. That, which has been selected, is the
middle age of life, by which period the character and
talents of individuals are generally known, and fully de-
veloped ; and opportunities have usually been afforded
for public service, and for experience in the public
councils. The faculties of the mind, if they have not
then attained to their highest maturity, are in full vig-
our, and hastening towards their ripest state. The
judgment, acting upon large materials, has, by that time,
attained a solid cast ; and the principles, which form
the character, and the integrity, which gives lustre
to the virtues of Kfe, must then, if ever, have acquired
public confidence and approbation.^
^ 1473. It is indispensable, too, that the president
should be a natural born citizen of the United States ;
or a citizen at the adoption of the constitution, and for
fourteen years before his election. This permission of a
naturalized citizen to become president is an excep-
tion from the great fundamental policy of all govern-
ments, to exclude foreign influence from their executive
councils and duties. It was doubdess introduced (for it
has now become by lapse of time merely nominal, and
will soon become wholly extinct) out of respect to
those distinguished revolutionary patriots, who were
born in a foreign land, and yet had entided themselves
1 See 1 Kent's Comm. Lc-ct. 13, p. 27-1
CH. XXXVI.] EXECUTIVE VICE-PRESIDENT. 333
to high honours in their adopted country.^ A positive
exclusion of them from the office would have been un-
just to their merits, and painful to their sensibilities.
But the general propriety of the exclusion of foreigners,
in common cases, will scarcely be doubted by any sound
statesman. It cuts off all chances for ambitious for-
eigners, who might otherwise be intriguing for the
office ; and interposes a barrier against those corrupt
interferences of foreign governments in execudve elec-
tions, Avhich have inflicted the most serious evils upon the
elecdve monarchies of Europe. Germany, Poland, and
even the pondficate of Rome, are sad, but instructive
examples of the enduring mischiefs arising from this
source.^ A residence of fourteen years in the United
States is also made an indispensable requisite for every
candidate ; so, that the people may have a full oppor-
tunity to know his character and merits, and that he
may have mingled in the duties, and felt the interests
and understood the principles, and nourished the attach-
ments, belonging to every citizen in a republican gov-
ernment.^ By " residence," in the constitution, is to be
understood, not an absolute inhabitancy within the
United States during the whole period ; but such an
inhabitancy, as includes a permanent domicil in the
United States. No one has supposed, that a tempo-
rary absence abroad on public business, and especially
on an embassy to a foreign nadon, would interrupt the
residence of a citizen, so as to disqualify him for
office.^ If the word were to be construed with such
strictness, then a mere journey through any foreio-n
1 Journ. of Convention, 2()7, 8-25, 361.
2 1 Kent's Cornm. Lect. 13, p. 255; 1 Tuck. Black. Comm. App. 303
3 Ibid.
4 Rawle on Const, cli. 31, p. 287.
334 CONSTITUTION OF THE U. STATES. [bOOK III.
adjacent territory for health, or for pleasure, or a com-
morancy there for a single day, would amount to a dis-
qualification. Under such a construction a miUtary or
civil officer, who should have been in Canada during
the late war on public business, would have lost his
eligibiUty. The true sense of residence in the consti-
tution is fixed domicil, or being out of the United States,
and setded abroad for the purpose of general inhabi-
tancy, animo manendi, and not for a mere temporary
and fugitive purpose, in transitu.
^ 1474. The next clause is, " In case of the removal
" of the president from office, or his death, resignation,
" or inability to discharge the duties of the said office,
" the same shall devolve on the vice-president. And
" the congress may by law provide for the case of re-
" moval, death, resignation, or inability of the president
" and vice-president, declaring what officer shall then
" act as president ; and such officer shall act accord-
"ingly, until the disability be removed, or a president
" shall be elected."
§ 1475. The original scheme of the constitution did
not embrace (as has been already stated) the appoint-
ment of any vice-president, and in case of the death,
resio-nation, or disability of the president, the president
of the senate was to perform the duties of his office.^
The appointment of a vice-president was carried by a
vote of ten states to one.^ Congress, in pursuance of
the power here given, have provided, that in case of
the removal, death, resignation, or inability of the presi-
dent and vice-president, the president of the senate
pro tempore, and in case there shall be no president,
then the speaker of the house of representatives for the
1 Journal of Convention, p. 2-25, 226. - Id. 321, 333, 337.
CH. XXXVI.] EXECUTIVE-VACANCY OF OFFICE. 335
time being shall act as president, until the disability
be removed, or a president shall be elected.^
§ 1476. No provision seems to be made, or at least
directly made, for the case of the non-election of any
president and vice-president at the period prescribed
by the constitution. The case of a vacancy by removal,
death, or resignation, is expressly provided for ; but
not of a vacancy by the expiration of the official term
of office. A learned commentator has thought, that
such a case is not likely to happen, until the people of
the United States shall be weary of the constitution and
government, and shall adopt this method of putting a pe-
riod to both, a mode of dissolution, which seems, from its
peaceable character, to recommend itself to his mind, as
fit for such a crisis.^ But no absolute dissolution of
the government would constitutionally take place by
such a non-election. The only effect would be, a sus-
pension of the powders of the executive part of the gov-
ernment, and incidentally of the legislative powers, un-
til a new election to the presidency should take place
at the next constitutional period, an evil of very great
magnitude, but not equal to a positive extinguishment
of the consUtution. But the event of a non-election
may arise, without any intention on the part of the peo-
ple to dissolve the government. Suppose there should
1 Act of 1st March, 1792, ch. 8, § 9. —If the office should devolve on
the speaker, after the congress, for which the last speaker was chosen,
had expired, and before the next meeting of congress, it might be a
question, who is to serve, and whether the speaker of the house of repre-
sentatives, then extinct, could]be deemed the person intended. J Kent's
Comm. Lect. 13, p. 260, 261. In order to provide for the exigency of a
vacancy in the office of president during the recess of congress, it has
become usual for the vice-president, a few days before the termination
of each session of congress, to retire from the chair of the senate, to ena-
ble that body to elect a president pro tempore to be ready to act in any
Case of emergency. Rawle on Const, ch. 5, p. 57.
2 1 Tuck. Black. Comm. App. 320.
336 CONSTITUTION OF THE U. STATES. [bOOK III.
be three candidates for the presidency, and two for the
vice -presidency, each of whom should receive, as nearly
as possible, the same number of votes ; which party,
under such circumstances, is bomid to yield up its own
preference ? May not each feel equally and conscien-
tiously the duty to support to the end of the contest its
own favorite candidate in the house of representatives 1
Take another case. Suppose two persons should re-
ceive a majority of all the votes for the presidency, and
both die before the time of taking office, or even before
the votes are ascertained by congress. There is noth-
ing incredible in the supposition, that such an event may
occur. It is not nearly as improbable, as the occur-
rence of the death of three persons, w ho had held the
office of president, on the anniversary of our indepen-
dence, and two of these in the same year. In each of
these cases there would be a vacancy in the office of
president and vice-president by mere efflux of time ;
and it may admit of doubt, whether the language of the
constitution reaches them. If the vice-president should
succeed to the office of president, ne will continue in
it until the regular expiration of the period, for which
the president was chosen ; for there is no provision for
the choice of a new president, except at the regular
period, w^hen there is a vice-president in office ; and
none for the choice of a vice-president, except when a
president also is to be chosen.^
§ 1477. Congress, however, have undertaken to
provide for every case of a vacancy both of the offices
of president and vice-president ; and have declared, that
in such an event there shall immediately be a new
election made in the manner prescribed by the act.^
1 See Rawle on Const, ch. 5, p. SG,
2 Act of J St March, 1792, cli. 8, § 11.
CH. XXXVI.] EXECUTIVE COMPENSATION. 337
How far such an exercise of power is constitutional has
never yet been solemnly presented for decision. The
point was hinted at in some of the debates, when the
constitution was adopted ; and it was then thought to be
susceptible of some doubt.^ Every sincere friend of the
constitution will naturally feel desirous of upholding the
power, as far as he constitutionally may.^ But it would
be more satisfactory, to provide for the case by some
suitable amendment, which should clear away every
doubt, and thus prevent a crisis dangerous to our future
peace, if not to the existence of the government.
§ 1478. What shall be the proper proof of the re-
signation of the president, or vice-president, or of their
refusal to accept the office, is left open by the consti-
tution. But congress, with great wisdom and fore-
cast, have provided, that it shall be by some instrument
in writing, declaring the same, subscribed by the party,
and delivered into the office of the secretary of state.^
§ 1479. The next clause is, "The president shall,
"at stated times, receive for his services a compensa-
" tion, which shall neither be increased, nor diminish-
" ed during the period, for which he shall have been
" elected, and he shall not receive within that period
"any other emolument from the United States, or any
" of them."
^ 1480. It is obvious, that without due attention
to the proper support of the president, the separation
1 2 Elliot's Debates, 359, 360.
2 In the revised draft of the constitution, the clause stood: "And
such officer shall act accordingly, until the disability be removed, or the
period for choosing another president arrive ; " and the latter words were
then altered, so as to read, " until a president shall he elected.''^ Journ. of
Convention, 361, 382.
3 Act of 1st March, 1792, ch. 8, § 11.
VOL. III. 43
338 CONSTITUTION OF THE U. STATES. [bOOK III.
of the executive from the legislative department would
be merely nominal and nugatory. The legislature, with
a discretionary power over his salary and emolument,
would soon render him obsequious to their will. A
control over a man's living is in most cases a control
over his actions. To act upon any other view of the
subject would be to disregard the voice of experience,
and the operation of the invariable principles, which
regulate human conduct. There are, indeed, men,
who could neither be distressed, nor won into a sacri-
fice of their duty. But this stern virtue is the growth
of few soils ; and it will be found, that the general les-
son of human life is, that men obey their interests ;
that they may be driven by poverty into base compli-
ances, or tempted by largesses to a desertion of duty.^
Nor have there been wanting examples in our own
country of the intimidation, or seduction of the execu-
tive by the terrors, or allurements of the pecuniary
arrangements of the legislative body.^ The wisdom
of this clause can scarcely be too highly commended.
The legislature, on the appointment of a president, is
once for all to declare, what shall be the compensation
for his services during the time, for which he shall have
been elected. This done, they will have no power to
alter it, either by increase or diminution, till a new
period of service by a new election commences. They
can neither weaken his fortitude by operating upon his
necessities, nor corrupt his integrity by appealing to his
avarice. Neither the Union, nor any of its members,
will be at liberty to give, nor will he be at liberty to re-
ceive, any other e\nolument. He can, of course, have
1 The Federalist, No. 73 ; 1 Kent's Comm. Lect. 13, p. 263.
2 The Federalist, No. 73 ; 1 Kent's Comm. Lect. 13, p. 263 ; 1 Tuck.
Black. Comm. A pp. 323, 324.
CH. XXXVI.] EXECUTIVE OATH. 339
no pecuniary inducement to renounce, or desert, the in-
dependence intended for him by the constitution.^ The
salary of the first president was fixed by congress at the
sum of twenty-five thousand dollars per annum, and of
the vice-president, at five thousand dollars.^ And to
prevent any difliculty, as to future presidents, congress,
by a permanent act, a few years afterwards established
the same compensation for all future presidents and
vice-presidents.^ So that, unless some great changes
should intervene, the independence of the executive is
permanently secured by an adequate maintenance ;
and it can scarcely be diminished, unless some future
executive shall basely betray his duty to his successor.
§ 1481. The next clause is, "Before he enters on
" the execution of his office, he shall take the following
" oath or affirmation : I do solemnly swear, (or affirm,)
" that I will faithfully execute the ofliice of President of
"the United States, and will, to the best of my ability,
" preserve, protect, and defend the constitution of the
" United States."
^ 1482. There is Ktde need of commentary upon
this clause. No man can well doubt the propriety of
placing a president of the United States under the
most solemn obligations to preserve, protect, and de-
fend the constitution. It is a suitable pledge of his
fidehty and responsibility to his country ; and creates
upon his conscience a deep sense of duty, by an appeal
at once in the presence of God and man to the most
sacred and solemn sanctions, which can operate upon
the human mind.^
1 The Federalist, No. 73.
2 Act of 24th September, 1789, ch. J 9.
3 Act of 18th February, 1793, ch. 9. -
4 See Journal of Convention, 225, 296, 361, 383.
340 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XXXVII.
EXECUTIVE POWERS AND DUTIES.
' ^ 1483. Having thus considered the manner, in
which the executive department is organized, the next
inquiry is, as to the powers, with which it is entrusted.
These, and the corresponding duties, are enumerated
in the second and third sections of the second ai'ticle
of the constitution.
^ 1484. The first clause of the second section is,
"The President shall be commander-in-chief of the
" army and navy of the United States, and of the miU-
" tia of the several states, when called into the actual
" service of the United States.^ He may require the
"opinion in writing of the principal officer in each of
" the executive departments, upon any subject relat-
" ing to the duties of their respective offices. And he
" shall have power to grant reprieves and pardons for
" offences against the United States, except in cases of
" impeachment."
§ 1485. The command and application of the pub-
lic force, to execute the laws, to maintain peace, and
to resist foreign invasion, are powers so obviously of
an executive nature, and require the exercise of quaU-
ties so peculiarly adapted to this department, that a
well-organized government can scarcely exist, when
they are taken away from it.^ Of all the cases and
concerns of government, the direction of wa* most
peculiarly demands those qualities, which distinguish
1 See Journal of Convention, 225,295, 362, 383.
2 X Kent's Comm. Lect. 13, p. 264 ; 3 Elliot's Deb. 103.
CH. XXXVII.] EXECUTIVE — POWERS. 341
the exercise of power by a single hand.^ Unity of
plan, promptitude, activity, and decision, are indispen-
sable to success ; and these can scarcely exist, except
when a single magistrate is entrusted exclusively with
the power. Even the coupling of the authority of an
executive council with him, in the exercise of such
powers, enfeebles the system, divides the responsibil-
ity, and not unfrequently defeats every energetic mea-
sure. Timidity, indecision, obstinacy, and pride of
opinion, must mingle in all such councils, and infuse a
torpor and sluggishness, destructive of all military ope-
rations. Indeed, there would seem to be little reason
to enforce the propriety of giving this power to the
executive department, (whatever may be its actual or-
ganization,) since it is in exact coincidence with the
provisions of our state constitutions ; and therefore
seems to be universally deemed safe, if not vital to the
system.
^ 1486. Yet the clause did not wholly escape
animadversion in the state conventions. The propri-
ety of admitting the president to be commander-in-
chief, so far as to give orders, and have a general super-
intendency, was admitted. But it was urged, that it
would be dangerous to let him command in person
without any restraint, as he might make a bad use of
it. The consent of both houses of congress ought,
therefore, to be required, before he should take the
actual command.^ The answer then given was, that
though the president might, there was no necessity, that
he should, take the command in person ; and there
was no probability, that he would do so, except in ex-
traordinary emergencies, and when he was possessed
1 The Federalist, No 74 ; 3 Elliot's Debates, 103.
2 2 Elliot's Debates, 365. See also 3 Elliot's Debates, 108.
342 CONSTITUTION OF THE U. STATES. [bOOK III.
of superior military talents.^ But if his assuming the
actual command depended upon the assent of congress,
what was to be done, when an invasion, or insurrection
took place during the recess of congress ? Besides ;
the very power of restraint might be so employed, as
to cripple the executive department, when filled by a
man of extraordinary military genius. The power of
the president, too, might well be deemed safe ; since he
could not, of himself, declare war, raise armies, or call
forth the militia, or appropriate money for the purpose ;
for these powers all belonged to congress.^ In Great
Britain, the king is not only commander-in-chief of the
army, and navy, and militia, but he can declare war ;
and, in time of war, can raise armies and navies, and
call forth the militia of his own mere will.^ So, that (to
use the words of Mr. Justice Blackstone) the sole su-
preme government and command of the militia within
all his majesty's realms and dominions, and of all forces
by sea and land, and of all forts and places of strength,
ever was and is the undoubted right of his majesty ;
and both houses or either house of parliament can-
not, nor ought to pretend to the same.^ The only
power of check by parliament is, the refusal of supplies;
and this is found to be abundantly sufficient to protect
the nation against any war against the sense of the
nation, or any serious abuse of the power in modern
times.^
1 2 Elliot's Debates, 366. 2 3 Elliot's Debates, 103.
3 3 Elliot's Debates, 103 ; 1 Black. Comm. 262, 408 to 421.
4 1 Black. Comm. 262, 263.
5 During the war with Great Britain in 1812, it was questioned,
whether the president could delegate his right to command the militia,
by authorizing another officer to command them, when they were called
into the public service. (8 Mass. Reports, 548, 550.) If he cannot, this
extraordinary result would follow, that if different detachments of militia
CH. XXXVII.] EXECUTIVE POWERS. 343
^ 1487. The next provision is, as to the power of
the president, to require the opinions in writing of the
heads of the executive departments. It has been re-
marked, that this is a mere redundancy, and the right
would result from the very nature of the office.^ Still,
it is not without use, as it imposes a more strict res-
ponsibility, and recognises a public duty of high im-
portance and value in critical times. It has, in the
progress of the government, been repeatedly acted
upon ; but by no president with more wisdom and pro-
priety, than by President Washington.^
§ 1488. The next power is, "to grant reprieves and
pardons." It has been said by the marquis Beccaria,
that the power of pardon does not exist under a per-
fect administration of the laws ; and that the admission
of the power is a tacit acknowledgment of the infirmi-
were called out, he could not, except in person, command any of them ;
and if they were to act together, no officer could be appointed to com-
mand them in his absence. In the Pennsylvanian insurrection, in 1794,
President Washington called out the militia of the adjacent states of
New Jersey, Maryland, and Virginia, as well as of Pennsylvania, and
all the troops, so called out, acted under the orders of the governor
of Virginia, on whom the president conferred the chief command during
his absence. Rawle on the Const, ch. 20, p. 193. It was a practical
affirmation of the authority, and was not contested. See also 5 Mar-
shall's Life of Washington, ch. 8, p. 580, 584, 588, 589.
1 The Federalist, No. 74. See Journal of Convention, 225, 326,
342.
2 Mr. Jeiferson has informed us, that in Washington's administration,
for measures of importance, or difficulty, a consultation was held with the
heads of the departments, either assembled, or by taking their opinions
separately in conversation, or in writing. In his own administration, he
followed the practice of assembling the heads of departments, as a
cabinet council. But lie has added, that he thinks the course of re-
quiring the separate opinion in writing of each head of a department
is most strictly in the spirit of the constitution ; for the other does, in
fact, transform the executive into a directory. 4 Jefferson's Corresp.
143, 144.
344 CONSTITUTIOISr of the U. states, [book III.
ty of the course of justice.^ But if this be a defect at
all, it arises from the infirmity of human nature gene-
rally ; and in this view, is no more objectionable, than
any other power of government ; for every such power,
in some sort, arises from human infirmity. But if it be
meant, that it is an imperfection in human legislation to
admit the power of pardon in any case, the proposition
may well be denied, and some proof, at least, be re-
quired of its sober reahty. The common argument is,
that where punishments are mild, they ought to be cer-
tain ; and that the clemency of the chief magistrate is
a tacit disapprobation of the laws. But surely no man
in his senses will contend, that any system of laws can
provide for every possible shade of guilt, a proportionate
degree of punishment. The most, that ever has been,
and ever can be done, is to provide for the punishment of
crimes by some general rules, and within some general
limitations. The total exclusion of all power of pardon
would necessarily introduce a very dangerous power
in judges and juries, of following the spirit, rather than
the letter of the laws ; or, out of humanity, of suffer-
ing real offenders wholly to escape punishment; or
else, it must be holden, (what no man will seriously
avow,) that the situation and circumstances of the of-
fender, though they alter not the essence of the offence,
ought to make no distinction in the punishment.^
There are not only various gradations of guilt in the
commission of the same crime, which are not suscepti-
ble of any previous enumeration and definition ; but the
proofs must, in many cases, be imperfect in their own
nature, not only as to the actual commission of the
1 Beccaria, ch. 46 ; 1 Kent. Comm. Lect. 13, p. 2G5 ; 4 Black. Comm.
307 ; 2 Wilson's Law Lect. 193 to 198.
a 4 Black. Comm. 397.
CH. XXXVII.] EXECUTIVE POWERS. 345
offence, but also, as to the ag^gravating or mitigatinp-
circumstances. In many cases, convictions must be
founded upon presumptions and probabilities. Would
it not be at once unjust and unreasonable to exclude
all means of mitigating punishment, when subsequent
inquiries should demonstrate, that the accusation was
wholly unfounded, or the crime greatly diminished in
point of atrocity and aggravation, from what the evi-
dence at the trial seemed to estabhsh ? A power to
pardon seems, indeed, indispensable under the most
correct administration of the law by human tribunals ;
since, otherwise, men would sometimes fall a prey to
the vindictiveness of accusers, the inaccuracy of testi-
mony, and the falhbility of jurors and courts.^ Be-
sides ; the law may be broken, and yet the offender
be placed in such circumstances, that he will stand, in
a great measure, and perhaps wholly, excused in moral
and general justice, though not in the strictness of the
law. What then is to be done ? Is he to be acquitted
against the law ; or convicted, and to suffer punishment
infinitely beyond his deserts? If an arbitrary power
is to be given to meet such cases, where can it be so
properly lodged, as in the execudve department 7^
J 1 Kent's Comm. Lect. 13, p. 265.
2 Mr. Chancellor Kent has placed the g-eneral reasoning in a just
light. " Were it possible," says he " in every instance, to maintain a
just proportion between the crime and the penalty, and were the rules
of testimony and the mode of trial so perfect, as to preclude mis-
take, or injustice, there would be some colour for the admission of
this (Beccaria's) plausible theory. But even in that case policy would
sometimes require a remission of a punisliment, strictly due for a crime
certainly ascertained. The very notion of mercy implies the accur;icy
of the claims of justice."* What should we say of a government,
which purported to act upon mere human justice, excluding all opera-
* 1 Kent's Comm. Lect. 13, p. 265.
VOL. III. 44
346 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1489. Mr. Justice Blackstone says, that "in de-
mocracies, this power of pardon can never subsist ;
for, there, nothing higher is acknowledged, than the
magistrate, who administers the laws; and it would be
impolitic for the power of judging, and of pardoning to
center in one and the same person. This (as the pre-
sident Montesquieu, observes) ^ would oblige him very
often to contradict himself, to make and unmake his
decisions. It would tend to confound all ideas of right
among the mass of the people, as they would find it
difficult to tell, whether a prisoner was discharged by
his innocence, or obtained a pardon through favour."^
And hence, he deduces the superiority of a monarchical
government ; because in monarchies, the king acts in a
superior sphere ; and may, therefore, safely be trusted
with the power of pardon, and it becomes a source of
personal loyalty and affection.^
§ 1490. But, surely, this reasoning is extremely
forced and artificial. In the first place, there isj^nore
difficulty or absurdity in a democracy, than in a mon-
archy, in such cases, if the power of judging and
pardoning be in the same hands ; as if the monarch be
at once the judge, and the person, who pardons. And
Montesquieu's reasoning is in fact addressed to this
very case of a monarch, who is at once the judge, and
dispenser of pardons."* In the next place, there is no
inconsistency in a democracy any more, than in a mon-
archy, in entrusting one magistrate with a powder to try
*
tions of mercy in all cases? An inexorable government would scarcely
be more praiseworthy, than a despotism. It would be intolerable and
unchristian.
' Montcsq. Spirit of Laws, B. G, ch. 5.
2 4 Black. Comm. 397, 3'J6.
3 Ibid. 4 Montesq. B. G, ch. 5.
CH. XXXVII.] EXECUTIVE POWERS. 347
the cause, and another with a power to pardon. 11ie
one power is not incidental to, hut in contrast ^\ ith the
other. Nor, if both powers were lodged in the same
magistrate, would there be any danger of dieir being
necessarily confounded ; for they may be required to
be acted upon separately, and at didei'ent times, so as
to be known as distinct prerogatives. But, in point
of fact, no such reasoning has die slightest applicadon
to the American governments, or, indeed, to any others,
where there is a separation of the general departments
of government, legislative, judicial, and executive, and
the powers of each are administered by distinct per-
sons. What difficulty is there in the people delegat-
ing the judicial power to one body of magistrates, and
the power of pardon to another, in a republic any more,
than there is in the king's delegating the judicial power
to magistrates, and reserving the pardoning power to
himself, in a monarchy ? ^ In truth, the learned author,
in his extreme desire to recommend a kingly form of
government, seems on this, as on many other occasions,
to have been misled into the most loose and inconclu-
sive statements. There is not a single state in the
Union, in which there is not by its constitudon a power
of pardon lodged in some one department of govern-
ment, distinct from the judicial.^ And the power of
remitting penaUies is in some cases, even in England,
entrusted to judicial officers.^
^ 1491. So far from the power of pardon being in-
1 Mr. Rawle's Remarks upon tliis subject are peculiarly valuable,
from their accuracy, philosopliical spirit, and clearness of statement-
Rawleon Const, ch. 17, p. 174 to 177.
2 1 Tucker's Black. Comm. App. 331 ; 2 Wilson's Law Lect. 193
to 200.
3 Bacon's Abrid^. Court of Exchequer, B.
348 CONSTITUTION OF THE U. STATES. [bOOK III.
compatible with the fundamental principles of a repub-
lic, it may be boldly asserted to be pecuharly appropri-
ate, and safe in all free states; because the power can
there be guarded by a just responsibility for its exer-
cise.^ Little room will be left for favouritism, personal
caprice, or personal resentment. If the power should
ever be abused, it would be far less hkely to occur in
opposition, than in obedience to the will of the people.
The danger is not, that in republics the victims of the
law will too often escape punishment by a pardon ;
but that the power will not be sufficiently exerted in
cases, where public feeling accompanies the prosecu-
tion, and assigns the ultimate doom to persons, who
have been convicted upon slender testimony, or popu-
lar suspicions.
^ 1492. The power to pardon, then, being a fit one
to be entrusted to all governments, humanity and
sound policy dictate, that this benign prerogative should
be, as Httle as possible, fettered, or embarrassed. The
criminal code of every country partakes so much of
necessary severity, that, without an easy access to
exceptions in favour of unfortunate guilt, justice would
assume an aspect too sanguinary and cruel. The only
question is, in what department of the government it
can be most safely lodged ; and that must principally
refer to the executive, or legislative department.
The reasoning in favour of vesting it in the executive
department may be thus stated. A sense of respon-
sibility is always strongest in proportion, as it is undi-
vided. A single person would, therefore, be most
ready to attend to the force of those motives, which
J Kent's Conim. Lect. 13, p. 2G6.
CH. XXXVII.] EXECUTIVE POWERS. 349
might plead for a mitigation of the rigour of the law;
and the least apt to yield to considerations, which were
calculated to shelter a ht object of its vengeance.
The consciousness, that the life, or happiness of an
offender was exclusively within his discretion, would
inspire scrupulousness and caution; and the dread of
being accused of weakness, or connivance, would beget
circumspection of a different sort. On the other hand,
as men generally derive confidence from numbers, a
large assembly might naturally encourage each other in
acts of obduracy, as no one would feel much appre-
hension of public censure.^ A public body, too, ordi-
narily engaged in other duties, would be httle apt to
sift cases of this sort thoroughly to the bottom, and
would be disposed to yield to the solicitations, or be
guided by the prejudices of a few ; and thus shelter
their own acts of yielding too much, or too little, under
the common apology of ignorance, or confidence. A
single magistrate would be compelled to search, and
act upon his own responsibility ; and therefore would
be at once a more enlightened dispenser of mercy, and
a more firm administrator of public justice.
§ 1493. There are probably few persons now, who
would not consider the power of pardon in ordinary
cases, as best deposited with the president. But the
expediency of vesting it in him in any cases, and espe-
cially in cases of treason, was doubted at the time of
adopting the constitution ; and it was then urged, that
it ought at least in cases of treason to be vested in one,
or both branches of the legislature.^ I'hat there are
strong reasons, which may be assigned in favour of
vesting the power in congress in cases of treason, need
' The Federalist, No. 74. See 2 Wilson's Law Lect. 198 to 200.
9 2 Elliot's Debates, 366 ; The Federalist, No. 74.
350 CONSTITUTION OF THE U. STATES. [BOOK III.
not be denied. As treason is a crime levelled at the
immediate existence of society, when the laws have
once ascertained the guilt of the offender, there would
seem to be a fitness in referring the expediency of an
act of mercy towards him to the judgment of the legis-
lature.^ But there are strong reasons also against it.
Even in such cases a single magistrate, of prudence
and sound sense, would be better fitted, than a nume-
rous assembly, in such delicate conjunctures, to weigh
the motives for and against the remission of the pun-
ishment, and to ascertain all the facts without undue
influence. The responsibility would be more felt, and
more direct. Treason, too, is a crime, that will often
be connected with seditions, embracing a large portion
of a particular community ; and might under such cir-
cumstances, and especially where parties were nearly
poised, find friends and favourites, as well as enemies
and opponents, in the councils of the nation.^ So, that
the chance of an impartial judgment might be less
probable in such bodies, than in a single person at the
head of the nation.
^ 1494. A still more satisfactory reason is, that the
legislature is not always in session ; and that their pro-
ceedings must be necessarily slow, and are generally
not completed, until after long delays. The inexpedi-
ency of deferring the execution of any criminal sen-
tence, until a long and indefinite time after a conviction,
is felt in all communities. It destroys one of the best
effects of punishment, that, which arises from a prompt
and certain administration of justice following close
upon the offence. If the legislature is invested with
1 The Federalist, No. 74.
2 The Federalist, No. 74 ; Rawle on Const, ch. 17, p. 178.
CH. XXXVI.] EXECUTIVE POWERS. 351
the authority to pardon, it is obviously indispensable,
that no sentence can be properly executed, at least in
capital cases, until they have had time to act. And a
mere postponement of the subject from session to ses-
sion would be naturally sought by all those, who favour-
ed the convict, and yet doubted the success of his
application. In many cases delay would be equivalent
to a pardon, as to its influence upon public opinion,
either in weakening the detestation of the crime, or
encouraging the commission of it. But the principal
argument for reposing the power of pardon in the ex-
ecutive magistrate in cases of treason is, that in seasons
of insurrection, or rebellion, there are critical moments,
when a well-timed offer of pardon to the insurgents, or
rebels, may restore the tranquillity of the Common-
wealth ; and if these are suffered to pass unimproved,
it may be impossible afterwards to interpose with the
same success. The dilatory process of convening the
legislature, or one of the branches, for the purpose of
sanctioning such a measure, would frequently be the
loss of the golden opportunity. The loss of a week, of
a day, or even of an hour may sometimes prove fatal. If
a discretionary power were confided to the president
to act in such emergencies, it would greatly diminish
the importance of the restriction. And it would gen-
erally be impolitic to hold out, either by the constitu-
tion or by law, a prospect of impunity by confiding the
exercise of the power to the executive in special cases;
since it might be construed into an argument of timidity
or weakness, and thus have a tendency to embolden
guilt.^ In point of fact, the power has always been
found safe in the hands of the state executives in trea-
1 The Federalist, No. 74 ; 3 Elliot's Debates, 105, IOC, 107.
352 CONSTITUTION OF THE U. STATES. [bOOK III.
son, as well as in other cases ; and there can be no
practical reason, why it should not be equally safe with
the executive of the Union. ^
^ 1495. There is an exception to the power of par-
don, that it shall not extend to cases of impeachment,
which takes from the president every temptation to
abuse it in cases of political and official offences by
persons in the public service. The power of impeach-
ment will generally be applied to persons holding high
offices under the government ; and it is of great con-
sequence, that the president should not have the power
of preventing a thorough investigation of their conduct,
or of securing them against the disgrace of a public
conviction by impeachment, if they should deserve it.
The constitution has, therefore, wisely interposed this
check upon his power, so that he cannot, by any cor-
rupt coalition with favourites, or dependents in high
offices, screen them from punishment.^
^ 1 496. In England (from which this exception was
probably borrowed) no pardon can be pleaded in bar
of an impeachment. But the king may, after convic-
tion upon an impeachment, pardon the offender. His
prerogative, therefore, cannot prevent the disgrace of a
conviction ; but it may avert its effects, and restore the
offender to his credit.^ The president possesses no
such power in any case of impeachment ; and, as the
judgment upon a conviction extends no farther, than to
a removal from office, and disqualification to hold office,
there is not the same reason for its exercise after con-
i The Federalist, No. 64; 3 Elliot's Debates, 105, lOG ; 1 Tucker's
Black. Comrn. A pp. 3-31.
2 I Kent's Comrn. Lect. 13, p. 206.
3 1 Tucker's Black. Com.n. App. 331, 332 ; 4 Black. Comm. 399, 400.
See also Rawle on Const, ch. 17, p. 176 ; oh. 31, p. 293, 294.
CH. XXXVII.] EXECUTIVE POWERS. 358
viction, as there is in England ; since (as we have seen)
the judgment there, so that it does not exceed what is
allowed by law, lies wholly in the breast of the house
of lords, as to its nature and extent, and may, in many
cases, not only reach the life, but the whole fortune of
the offender.
§ 1497. It would seem to result from the principle,
on which the power of each branch of the legislature to
punish for contempts is founded, that the executive
authority cannot interpose between them and the of-
fender. The main object is to secure a purity, inde-
pendence, and ability of the legislature adequate to the
discharge of all their duties. If they can be overawed
by force, or corrupted by largesses, or interrupted in
their proceedings by violence, without the means of
self-protection, it is obvious, that they will soon be found
incapable of legislating with wisdom or independence.
If the executive should possess the power of pardoning
any such offender, they would be wholly dependent upon
his good will and pleasure for the exercise of their own
powers. Thus, in effect, the rights of the people en-
trusted to them would be placed in perpetual jeopardy.
The consdtution is silent in respect to the right of
grandng pardons in such cases, as it is in respect to the
jurisdiction to punish for contempts. The latter arises
by implication ; and to make it effectual the former is
excluded by implication.^
§ 1498. Subject to these exceptions, (and perhaps
there may be others of a like nature standing on special
grounds,) the power of pardon is general and unqualified,
reaching from the highest to the lowest offences. The
power of remission of fines, penalties, and forfeitures is
1 Rawle on Constitution, ch. 17, p. 177.
VOL. III. 45
354 CONSTITUTION OF THE U. STATES. [BOOK III.
also included in it ; and may in the last resort be exer-
cised by the executive, although it is in many cases by
our laws confided to the treasury department.^ No
law can abridge the constitutional powers of the execu-
tive department, or interrupt its right to interpose by
pardon in such cases.^
§ 1499. The next clause is: "He (the president)
" shall have power, by and with the advice and consent
"of the senate, to make treaties, provided two thirds of
" the senators present concur. And he shall nominate,
" and, by and with the advice and consent of the senate,
"shall appoint ambassadors, other public ministers,
" and consuls, judges of the Supreme Court, and all
" other officers of the United States, whose appoint-
"ments are not herein otherwise provided for, and
"which shall be estabhshed by law. But the congress
"may by law vest the appointment of such inferior offi-
" cers, as they think proper, in the president alone, in
" the courts of law, or in the heads of departments."
^ 1500. The first power, "to make treaties," was
not in the original draft of the constitution ; but was
afterwards reported by a committee ; and after some
ineffectual attempts to amend, it was adopted, in sub-
stance, as it now stands, except, that in the report the
advice and consent of two thirds of the senators was not
required to a treaty of peace. This exception was
struck out by a vote of eight states against three. The
principal struggle was, to require two thirds of the
1 Actof3d of March, 1797, ch. 67; Act of 11th of Feb. 1800, ch. 6.
2 Instances of the exercise of this power by the president, in remit-
ting fines and penalties incases, not within the scope of the laws giving
authority to the treasury department, have repeatedly occurred ; and
their obligatory force has never been questioned.
CH. XXXVII.] EXECUTIVE POWERS. 355
whole number of members of the seiiLile, instead of two
tliirds of those present.^
§ 1501. Under the confederation congress possessed
the sole and exclusive power of " entering into treaties
and alliances, provided, that no treaty of commerce
shall be made, whereby the legislative power of the
respective states shall be restrained from imposing
such imposts and duties on foreigners, as their own
people were subjected to; or from prohibiting the
exportation or importation of any species of goods or
commodities whatsoever." But no treaty or alliance
could be entered into, unless by the assent of nine of
the states.^ These hmitations upon the power were
found very inconvenient in practice ; and indeed, in
conjunction with other defects, contributed to the pros-
tration, and utter imbecility of the confederation.^
^ 1502. The power "to make treaties "is by the
constitution general ; and of course it embraces all sorts
of treaties, for peace or war ; for commerce or territory;
for alliance or succours ; for indemnity for injuries or
payment of debts ; for the recognition and enforcement
of principles of public law ; and for any other purposes,
which the policy or interests of independent sovereigns
may dictate in their intercourse with each other.^ But
though the power is thus general and unrestricted, it
is not to be so construed, as to destroy the fundamental
law^s of the state. A powder given by the constitution
cannot be construed to authorize a destruction of other
powers given in the same instrument. It must be con-
1 Journal of Convention, p. 225, 326, 339, 341, 342, 343,362; The
Federalist, No. 75.
2 Confederation, Art. 9.
3 The Federalist, No. 42.
4 See 5 Marshall's Life of Waihington, ch. 8, p. 650 to 659.
356 CONSTITUTION OF THE U. STATES. [bOOK III.
strued, therefore, in subordination to it; and cannot
supersede, or interfere with any other of its fundamental
provisions.^ Each is equally obligatory, and of para-
mount authority within its scope ; and no one embraces
a right to annihilate any other. A treaty to change the
organization of the government, or annihilate its sove-
reignty, to overturn its republican form, or to deprive
it of its constitutional powers, would be void; because it
would destroy, what it was designed merely to fulfil, the
will of the people. Whether there are any other re-
strictions, necessarily growing out of the structure of
the government, will remain to be considered, whenever
the exigency shall arise.^
§ 1503. The power of making treaties is indispensa-
ble to the due exercise of national sovereignty, and
very important, especially as it relates to war, peace, and
commerce. That it should belong to the national gov-
ernment would seem to be irresistibly estabUshed by
every argument deduced from experience, from public
policy, and a close survey of the objects of government.
It is difficult to circumscribe the power within any
definite limits, apphcable to all times and exigencies,
without impairing its efficacy, or defeating its purposes.
The constitution has, therefore, made it general and
unqualified. This very circumstance, however, renders
it highly important, that it should be delegated in such
1 See Woodeson's Elcm. of Jurisp. p. 51.
2 See 1 Tuck. Black. Comm. App. 332, 333 ; Rawle on Const, ch. 7,
p. 63 to 7G ; 2 Elliot's Deb. 368, 369 to 379 ; Journal of Convention, p.
342 ; 4 Jefferson's Corresp. 2, 3. — Mr. Jefferson seems at one time to
have thought, that the constitution only meant to authorize the president
and senate to carry into effect, by way of treaty, any power they might
constilutionally exercise. At the same time, he admits, that he was
sensible of the weak points of this position. 4 Jefferson's Corresp. 498.
What are such powers given to the president and senate ? Could they
make appointments by treaty ?
CH. XXXVII.] EXECUTIVE POWERS. 357
a mode, and with such precautions, as will afford the
highest security, that it will be exercised by men the
best qualified for the purpose, and in the manner most
conducive to the public good.^ With such views, the
question was naturally presented in the convention, to
what body shall it be delegated ? It might be delegat-
ed to congress generally, as it was under the confedera-
tion, exclusive of the president, or in conjunction with
him. It might be delegated to either branch of the
legislature, exclusive of, or in conjunction with him. Or
it might be exclusively delegated to the president.
§ 1504. In the formation of treaties, secrecy and im-
mediate despatch are generally requisite, and sometimes
absolutely indispensable. Intelligence may often be
obtained, and measures matured in secrecy , which
could never be done, unless in the faith and confidence
of profound secrecy. No man at all acquainted with
diplomacy, but must have felt, that the success of nego-
tiadons as often depends upon their being unknown by
the pubUc, as upon their justice or their policy. Men
will assume responsibility in private, and communicate
information, and express opinions, which they would
feel the greatest repugnance publicly to avow ; and
measures may be defeated by the intrigues and man-
agement of foreign powers, if they suspect them to be in
progress, and understand their precise nature and ex-
tent. In this view the executive department is a far
better depositary of the power, than congress would be.
The delays incident to a large assembly ; the differ-
ences of opinion ; the time consumed in debate ; and
the utter impossibility of secrecy, all combine to render
them unfitted for the purposes of diplomacy. And our
1 The Federalist, No. G4.
358 CONSTITUTION OF THE U. STATES. [BOOK III.
own experience during the confederation abundantly de-
monstrated all the evils, which the theory would lead us
to expect.^ Besides ; there are tides in national affairs,
as well as in the affairs of private life. To discern and
profit by them is the part of true political wisdom ; and
the loss of a week, or even of a day, may sometimes
change the whole aspect of affairs, and render negotia-
tions wholly nugatory, or indecisive. The loss of a
batde, the death of a prince, the removal of a minister,
the pressure or removal of fiscal embarrassments at the
moment, and other circumstances, may change the whole
posture of affairs, and ensure success, or defeat the best
concerted project.^ The executive, having a constant
eye upon foreign affairs, can promptly meet, and even
anticipate such emergencies, and avail himself of all the
advantages accruing from them ; while a large assembly
would be coldly deliberating on the chances of success,
and the policy of opening negotiations. It is manifest,
then, that congress would not be a suitable depositary
of the power.
^ 1505. The same difTiculties would occur from con-
fiding it exclusively to either branch of congress. Each
is too numerous for prompt and immediate action, and
secrecy. The matters in negotiations, which usually
require these qualities in the highest degree, are the
preparatory and auxiliary measures ; and which are to
be seized upon, as it were, in an instant. The presi-
dent could easily arrange them. But the house, or the
senate, if in session, could not act, until after great de-
lays ; and in the recess could not act all. To have
entrusted the power to either would have been to re-
linquish the benefits of the constitutional agency of the
1 The Federalist, No. G4. 2 id. No. 64.
CH. XXXVII.] EXECUTIVE POWERS. 359
president in the conduct of foreign negotiations. It is
true, that the branch so entrusted might have the op-
tion to employ the president in that capacity ; but they
would also have the option of refraining from it ; and it
cannot be disguised, that pique, or cabal, or personal
or poUdcal hostility, might induce them to keep their
pursuits at a distance from his inspection and participa-
tion. Nor could it be expected, that the president, as
a mere ministerial agent of such branch, would enjoy
the confidence and respect of foreign powers to the
same extent, as he would, as the constitutional repre-
sentative of the nation itself; and his interposition
would of course have less efficacy and weight.^
^ 1506. On the other hand, considering the delicacy
and extent of the power, it is too much to expect, that
a free people would confide to a single magistrate, how-
ever respectable, the sole authority to act conclusively,
as well as exclusively, upon the subject of treaties. In
England, the power to make treaties is exclusively vest-
ed in the crown.^ But however proper it may be in a
monarchy, there is no American statesman, but must feel,
that such a prerogative in an American president would
be inexpedient and dangerous.^ It would be inconsistent
with that wholesome jealousy, which all republics ought
to cherish of all depositaries of power ; and which, ex-
perience teaches us, is the best security against the
abuse of it.^ The check, which acts upon the mind
from the consideration, that what is done is but pre-
liminary, and requires the assent of other independent
minds to give it a legal conclusiveness, is a restraint,
which awakens caution, and compels to deliberation.
1 The Federalist, No. 75.
2 I Black. Comm. 257 ; The Federalist, No. 69.
3 The Federalist, No. 75. 4 Id. No. 75.
360 CONSTITUTIOIS^ OF THE U. STATES. [bOOK III.
§ 1507. The plan of the constitution is happily adapt-
ed to attain all just objects in relation to foreign nego-
tiations. While it confides the power to the executive
department, it guards it from serious abuse by placing
it under the ultimate superintendence of a select body
of high character and high responsibihty. It is indeed
clear to a demonstration, that this joint possession of
the power affords a greater security for its just exercise,
than the separate possession of it by either.^ The
president is the immediate author and finisher of all
treaties ; and all the advantages, which can be derived
from talents, information, integrity, and deliberate in-
vestigation on the one hand, and from secrecy and
despatch on the other, are thus combined in the sys-
tem.^ But no treaty, so formed, becomes binding upon
the country, unless it receives the deliberate assent of
two thirds of the senate. In that body all the states
are equally represented ; and, from the nature of the
appointment and duration of the office, it may fairly be
presumed at all times to contain a very large portion of
talents, experience, poUtical wisdom, and sincere patri-
otism, a spirit of liberality, and a deep devotion to all
the substantial interests of the country. The constitu-
tional check of requiring two thirds to confirm a treaty
is, of itself, a sufficient guaranty against any wanton
sacrifice of private rights, or any betrayal of public
privileges. To suppose otherwise w^ould be to sup-
pose, that a representative republican government was
a mere phantom ; that the state legislatures were inca-
pable, or unwilling to choose senators possessing due
qualifications ; and that the people would voluntarily
confide power to those, who were ready to promote
I Tlie Fedendist, No. 75. 2 id. No. 64.
CH. XXXVII.] EXECUTIVE POWERS. 861
their ruin, and endanger, or destro}^ their liberties.
Without supposing a case of utter indifference, or utter
corruption in the people, it would be impossible, that
the senate should be so constituted at any time, as that
the honour and interests of the country would not be
safe in their hands. When such an indifference, or cor-
ruption shall have arrived, it will be in vain to prescribe
any remedy ; for the constitution will have crumbled
into ruins, or have become a mere shadow, about which
it would be absurd to disquiet ourselves.^
§ 1508. Although the propriety of this delegation of
the power seems, upon sound reasoning, to be incon-
testible ; yet few parts of the constitution were assailed
with more vehemence.^ One ground of objection was,
the trite topic of an intermixture of the executive and
legislative powers ; some contending, that the presi-
dent ought alone to possess the prerogative of making
treaties ; and others, that it ought to be exclusively
deposited in the senate. Another objection was, the
smallness of the number of the persons, to whom the
power was confided ; some being of opinion, that the
house of representatives ought to be associated in its
exercise ; and others, that two thirds of all the mem-
bers of the senate, and not two thirds of all the mem-
bers present, should be required to ratify a treaty.^
§ 1509. In relation to the objection, that the power
ought to have been confided exclusively to the presi-
dent, it may be suggested in addition to the preceding
remarks, that, however safe it may be in governments,
where the executive magistrate is an hereditary mon-
arch, to commit to him the entire power of making
1 The Federalist, No. G4.
2 See 2 Elliot's Debates, 367 to 379.
3 The Federalist, No. 75.
VOL. III. 46
362 CONSTITUTION OF THE U. STATES. [bOOK III.
treaties, it would be utterly unsafe and improper to
entrust that power to an executive magistrate chosen
for four years. It has been remarked, and is unques-
tionably true, that an hereditary monarch, though often
the oppressor of his people, has personally too much at
stake in the government to be in any material danger
of corruption by foreign powers, so as to surrender any
important rights or interests. But a man, raised from a
private station to the rank of chief magistrate for a short
period, having but a slender or moderate fortune, and
no very deep stake in the society, might sometimes be
under temptations to sacrifice duty to interest, which
it would require great virtue to withstand. If ambitious,
he might be tempted to seek his own aggrandizement
by the aid of a foreign power, and use the field of nego-
tiations for this purpose. If avaricious, he might make
his treachery to his constituents a vendible article at an
enormous price. Although such occurrences are not
ordinarily to be expected; yet the history of human
conduct does not warrant that exalted opinion of hu-
man nature, which would make it wise in a nation to
commit its most delicate interests and momentous con-
cerns to the unrestrained disposal of a single magistrate.^
It is far more wise to interpose checks upon the actual
exercise of the power, than remedies to redress, or pun-
ish an abuse of it.
^ 1510. The impropriety ;of delegating the power
exclusively to the senate has been already sufficiently
considered. And, in addidon to wdiat has been already
urged against the participation of the house of repre-
sentatives in it, it may be remarked, that the house of
representatives is for odier reasons far less fit, than the
1 The Federalist, No. 75.
CH. XXXVII.] EXECUTIVE POWERS. 363
senate, to be the exclusive depositary of the power, or
to hold it in conjunction with the executive. In the
first place, it is a popular assembly, chosen immediately
from the people, and representing, in a good measure,
their feelings and local interests ; and it will on this ac-
count be more likely to be swayed by such feelings
.and jnterests, than the senate, chosen by the states
through the voice of the state legislatures. In the next
place, the house of representatives are chosen for two
years only ; and the internal composition of the body is
constantly changing so, as to admit of less certainty in
their opinions, and their measures, than would naturally
belong to a body of longer duration. In the next place,
the house of representatives is far more numerous, than
the senate, and will be constantly increasing in num-
bers so, that it will be more slow in its movements, and
more fluctuating in its councils. In the next place, the
senate will naturally be composed of persons of more
experience, weight of character, and talents, than the
members of the house. Accurate knowledge of for-
eign poUtics, a steady and systematic adherence to
the same views, nice and uniform sensibility to na-
tional character, as well as secrecy, decision, and
despatch, are required for a due execution of the power
to make treaties. And, if these are not utterly incom-
patible with the genius of a numerous and variable
body, it must be admitted, that they will be more rarely
found there, than in a more select body, having a longer
duration in office, and representing, not the interests
of private constituents alone, but the sovereignty of
states.
^ 1511. Besides; the very habits of business, and
the uniformity and regularity of system, acquired by a
long possession of office, are of great concern in all
364 CONSTITUTION OF THE U. STATES. [BOOK III.
cases of this sort. The senators from the longer dura-
tion of their office will have great opportunities of ex-
tending their political information, and of rendering
their experience more and more beneficial to their
country. The members are slowly changed ; so, that
the body will at all times, from its very organization,
comprehend a large majority of persons, who have
been engaged for a considerable time in public duties,
and foreign affairs. If, in addition to all these reasons,
it is considered, that in the senate all the states are
equally represented, and in the house very unequally,
there can be no reasonable doubt, that the senate is in
all respects a more competent, and more suitable depos-
itary of the power, than the house, either with, or with-
out the co-operation of the executive. And most of
the reasoning applies with equal force to any participa-
tion by the house in the treaty-making functions. It
would add an unwieldly machinery to all foreign ope-
rations ; and retard, if not wholly prevent, the benefi-
cial purposes of the power.^ Yet such a scheme has
not been without warm advocates. And it has been
thought an anomaly, that, while the power to make
war was confided to both branches of congress, the
power to make peace was within the reach of one,
with the co-operation of the president.^
§ 1512. But there will be found no inconsistency, or
inconvenience in this diversity of powder. Considering
the vast expenditures and calamities, with which war
is attended, there is certainly the strongest ground for
1 The Federalist. No. 64, 75. — In the convention a proposition was
made to add the house to the senate, in advising and consenting to trea-
ties. But it was rejected by the vote often states against one. Journ.
ofConvention, 339, 340.
y 1 Tuck. Black. Comm. App. 338, 339.
CH. XXXVII.] EXECUTIVE POWERS. 365
confiding it to the collected wisdom of the national
councils. It requires one party only to declare war ;
but it requires the co-operation and consent of
both belligerents to make peace. No negotiations
are necessary in the former case ; in the latter, they
are indispensable. Every reason, therefore, for en-
trusting the treaty-making power to the president
and senate in common negotiations, applies a fortioi^i
to a treaty of peace. Indeed, peace is so important to
the w^elfare of a republic, and so suited to all its truest
interests, as well as to its hberties, that it can scarcely
be made too facile. While, on the other hand, war is
at all times so great an evil, that it can scarcely be
made too difficult. The power to make peace can
never be unsafe for the nation in the hands of the
president and two thirds of the senate. The power
to prevent it, may not be without hazard in the hands
of the house of representatives, who may be too much
under the control of popular excitement, or legislative
rivalry, to act at all times with the same degree of
impartiality and caution. In the convention, a proposi-
tion to. except treaties of peace from the treaty-making
power was, at one time, inserted, but was afterwards
deliberately abandoned.^
§ 1513. In regard to the objection, that the arrange-
ment is a violation of the fundamental rule, that the
legislative and executive departments ought to be kept
separate ; it might be sufficient to advert to the con-
siderations stated in another place, Avhich show, that
the true sense of the rule does not require a total sep-
aration.^ But, in truth, the nature of the power of mak-
ing treaties indicates a peculiar propriety in the Union
of the executive and the senate in the exercise of it.
1 Journ. of ConvenUon, 226, 325, 326, 341, 342.
2 See Vol. II. § 524, et seq. / '
366 CONSTITUTION OF THE U. STATES. [bOOK III.
Though some writers on government place this power
in the class of executive authorities ; yet, it is an ar-
bitrary classification ; and, if attention is given to
its operation, it will be found to partake more of the
legislative, than of the executive, character. The
essence of legislation is to prescribe laws, or regulations
for society ; while the execution of those laws and reg-
ulations, and the employment of the common strength,
either for that purpose, or for the common defence,
seem to comprize all the functions of the executive
magistrate. The power of making treaties is plainly
neither the one, nor the other. It relates, neither to the
execution of subsisting laws, nor to the enactment of
new ones ; and still less does it relate to the exertion of
the common strength. Its objects are contracts with
foreign nations, which have the force of law with us; but,
as to the foreign sovereigns, have only the obhgation
of good faith. Treaties are not rules prescribed by the
sovereign to his subjects ; but agreements between
sovereign and sovereign. The treaty-making power,
therefore, seems to form a distinct department, and to
belong, properly, neither to the legislature, nor the ex-
ecutive, though it may be said to partake of quaUties
common to each. The president, from his unity,
promptitude, and facility of action, is peculiarly well
adapted to carry on the initiative processes ; while the
senate, representing all the states, and engaged in legis-
lating for the interests of the whole country, is equal-
ly well fitted to be entrusted with the power of ulti-
mate ratification.^
§ 1514. The other objection, which would require a
concurrence of two thirds of all the members of the
1 The Federalist, No. 75.
CH. XXXVII.] EXECUTIVE POWERS. 367
senate, and not merely of two thirds of all present, is
not better founded.^ All provisions, which require more,
than a majority of any body to its resolutions, have (as
has been already indmated) a direct tendency to em-
barrass the operations of the government, and an in-
direct one to subject the sense of the majority to that
of the minority. This consideraUon ought never to be
lost sight of; and very strong reasons ought to exist to
justify any departure from the ordinary rule, that the
majority ought to govern. The consdtution has, on
this point, gone as far in the endeavour to secure the
advantage of numbers in the formation of treades, as
can be reconciled either with the activity of the public
councils, or with a reasonable regard to the sense of
the major part of the community. If two thirds of the
whole number of members had been required, it would,
in many cases, from a non-attendance of a part, amount
in practice to a necessity almost of unanimity. The
history of every political establishment, in which such
a principle has prevailed, is a history of impotence,
perplexity, and disorder. Proofs of this posidon may
be easily adduced from the examples of the Roman
tribuneship, the Polish diet, and the states general of
the Nedierlands, and even from our ow^n experience
under the confederation.^ Under the latter instrument
the concurrence of nine states was necessary, not only
to making treaties, but to many other acts of a less
important character ; and measures were often defeat-
ed by the non-attendance of members, sometimes by
design, and sometimes by accident.^ It is hardly pos-
sible, that a treaty could be ratified by surprise, or tak-
1 2 Elliot's Debates, 367 to 379.
2 The Federalist, No. 75 ; Id. No. 22.
3 Ibid, and 1 Elliot's Debates, 44, 45.
368 CONSTITUTION OF THE U. STATES. BOOK III.
ing advantage of the accidental absence of a few mem-
bers ; and certainly the motive to punctuality in at-
tendance will be greatly increased by making such rat-
ification to depend upon the numbers present.^
§ 1515. The Federalist has taken notice of the dif-
ference between the treaty-making power in England,
and that in America in the following terms : " The
president is to have power, with the advice and con-
sent of the senate, to make treaties, provided two
thirds of the members present concur. The king of
Great Britain is the sole and absolute representative of
the nation, in all foreign transactions. He can, of his
own accord, make treaties of peace, commerce, alhance,
and of every other description. It has been insinuated,
that his authority, in this respect, is not conclusive; and
that his conventions with foreign powers are subject
to the revision, and stand in need of the ratification of
parliament. But, I believe, this doctrine was never
heard of, till it was broached upon the present occasion.
Every jurist of that kingdom, and every other man ac-
quainted with its constitution, knows, as an established
fact, that the prerogative of making treaties exists in
the crown in its utmost plenitude ; and that the com-
pacts entered into by the royal authority have the
most complete legal validity and perfection, independ-
1 The Federalist, No. 75, 22 ; 2 Elliot's Deljates, 368. — In the con-
vention a proposition to require the assent of two thirds of all the mem-
bers of the senate was rejected by the vote of eight states against
three. Another to require, that no treaty shall be made, unless two
thirds of tiie whole number of senators were present, was also rejected
by the vote of six states against five. Another, to require a majority of
all the members of the senate to make a treaty, was also rejected by the
vote of six states against five. Another, to require, that all the mem-
bers should be summoned, and have time to attend, shared a like fate,
by the vote of eight states against three. Journal of Convention, 343,
344.
CH. XXXVII.] EXECUTIVE POWERS. 369
ent of any other sanction. The parUament, it is true,
is sometimes seen employing itself in altering the ex-
isting laws, to conform them to the stipulations in a
new treaty ; and this may have, possibly, given birth
to the imagination, that its co-operation was necessary
to the obligatory efficacy of the treaty. But this par-
liamentary interposition proceeds from a different
cause; from the necessity of adjusting a most ardficial
and intricate system of revenue and commercial laws
to the changes made in them by the operation of the
treaty ; and of adapting new provisions and precau-
tions to the new state of things, to keep the machine
from running into disorder. In this respect, therefore,
there is no comparison between the intended power of.
the president, and the actual power of the British sove-
reign. The one can perform^ alone, what the other can
only do with the concurrence of a branch of the legis-
lature. It must be admitted, that, in this instance, the
power of the federal executive would exceed that of
any state executive. But this arises naturally from the
exclusive possession, by the Union, of that part of the
sovereign power, which relates to treaties. If the con-
federacy were to be dissolved, it would become a ques-
tion, whether the executives of the several states were
not solely invested with that delicate and important
prerogative." ^
§ 1516. Upon the whole it is difficult to perceive,
how the treaty-making power could have been better
deposited, with a view to its safety and efficiency.
Yet it was declaimed against with uncommon energy,
as dano;erous to the commonwealth, and subversive of
1 See also the opinion of Iredell J. in JVare v. Hijlton, 3 Dail. 272 to
276.
VOL. iij. 47
370 CONSTITUTION OF THE U. STATES. [bOOK III.
public liberty.^ Time has demonstrated the fallacy of
such prophecies ; and has confirmed the belief of the
friends of the constitution, that it would be, not only
safe, but full of wisdom and sound policy. Perhaps no
stronger illustration, than this, can be found, of the facil-
ity of suggesting ingenious objections to any system,
calculated to create public alarm, and to wound public
confidence, which, at the same time, are unfounded in
human experience, or in just reasoning.
§ 1517. Some doubts appear to have been enter-
tained in the early stages of the government, as to the
correct exposition of the constitution in regard to the
agency of the senate in the formation of treaties. The
question was, whether the agency of the senate was
admissible previous to the negotiation, so as to advise
on the instructions to be given to the ministers ; or
w^as limited to the exercise of the power of advice and
consent, after the treaty was formed ; or whether the
president possessed an option to adopt one mode, or
the other, as his judgment might direct.^ The prac-
tical exposition assumed on the first occasion, which
seems to have occurred in President Washington's ad-
ministration, was, that the option belonged to the exec-
utive to adopt either mode, and the senate might ad-
vise before, as well as after, the formation of a treaty.^
Since that period, the senate have been rarely, if ever,
consulted, until after a treaty has been completed, and
laid before them for ratification.^ When so laid before
the senate, that body is in the habit of deliberating upon
it, as, indeed, it does on all executive business, in secret.
1 2 Elliot's Del)ates, 367 to 379.
2 5 Marshall's Life of Washington, cli. 2, p. 223.
3 Executive Journal, 11th August, 1790, p. 60, 61,
* Rawle on Const, ch. 7, p. 63.
CH. XXXVII.] EXECUTIVE I»OWERS. 371
and witli closed doors. The senate may wliolly reject
the treaty, or advise and consent to a ratification of part
of the articles, rejecting others, or recommend addi-
tional or explanatory articles. In the event of a par-
tial ratification, the treaty does not become the law of
the land, until the president and the foreign sovereign
have each assented to the modifications proposed by
the senate.^ But, although the president may ask the
advice and consent of the senate to a treaty, he is not
absolutely bound by it ; for he may, after it is given,
1 Rawle on Const, cli. 7, p. G3, 64. — Before the ratification of trea-
ties, it is common for the senate to require, nnd for the president to lay
before them, all tlic official documents respecting tiie negotiations, to
assist their judgment. But the house of representatives have no consti-
tutional right to insist on the production of them ; and it is matter of
discretion with the president, whether to comply, or not, with the de-
mand of the house, Avhich is but in the nature of a request. In the case
of the British Treaty of 1794, President Washington refused to lay the
papers before the house of representatives, when requested by them so
to do. See his Message, 24th of March, 1796; 1 Tuck. Black. Coram.
App. 334 ; 5 Marshall's Life of Washington, cli. 8, p. 654; 4 Jefferson's
Corresp. 464, 465 ; Rawle on Const, ch. 16, p. 171.
In the early part of President Washington's administration, he occa-
sionally met the senate in person, to confer with them on the executive
business confided to them by the constitution. But this practice was
found very inconvenient, and was soon abandoned. In June, 1813, the
senate appointed a committee to hold a conference with President
Madison, respecting his nomination of a minister to Sweden, then before
them for ratification. But he declined it, considering, that it was in-
compatible with the due relations between the executive, and other de-
partments of the government* It is believed, that the practice has been
ever since abandoned.
Mr. Jefferson and the cabinet, (with the exception of Mr. Hamilton,)
in President Washington's ad:niuistration, seem to have been of opinion,
that neither branch of the legislature had a right to call upon the heads
of departments, except through calls on the president for information or
papers. (4 Jefferson's Corresp. 463, 464, 465.) The practice has, how-
ever, of late years, settled down in favour of making direct calls on the
heads of the departments. Rawle on Const, ch. 16, p. 171, 172.
* Sergeant on Const, cli. 31, (2(1 edition,) p. 371 ; 5 Xiles's Ro<;i.<ter, 213, 290; Id. 276, 340 ;
2 Executive Journal, 354, 381, 382. Sec also 2 Exjcutivu Journal, 353, 351^ 388, 388.
372 CONSTITUTION OF THE U. STATES. [bOOK III.
still constitutionally refuse to ratify it. Such an occur-
rence will probably be rare, because the president will
scarcely incline to lay a treaty before the senate, which
he is not disposed to ratify.^
§ 1518. The next part of the clause respects ap-
pointments to office. The president is to nominate,
and by and with the advice and consent of the senate,
to appoint ambassadors, other public ministers, and
consuls, judges of the Supreme Court, and other officers,
whose appointments are not otherwise provided for.
§ 1519. Under the confederation, an exclusive pow-
er was given to congress of " sending and receiving
ambassadors." ^ The term "ambassador," strictly con-
strued, (as would seem to be required by the second
article of that instrument,) comprehends the highest
grade only of public ministers ; ^ and excludes those
grades, which the United States would be most likely
to prefer, whenever foreign embassies may be neces-
saiy. But under no latitude of construction could the
term, " ambassadors," comprehend consuls. Yet it
was found necessaij by congress to employ the inferi-
or grades of ministers, and to send and receive consuls.
It is true, that the mutual appointment of consuls might
have been provided for by treaty ; and where no treaty
existed, congress might perhaps have had the authority
under the ninth article of the confederation, which con-
ferred a general authority to appoint officers managing
the general affiiirsof the United States. But the admis-
1 Rawle on the Constitution, ch. 20, p. 194, 195 ; 4 Jefferson's Cor-
respondence, 317, 318.
2 Article 9.
3 An enumeration of tlie various grades and powers of foreign minis-
ters properly belongs to a treatise on public law. The learned reader,
however, will find ample information in the treatises of Grotius, Vattel,
Martens, and Wicquefort.
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 373
sion of foreign consuls into the United States, when not
stipulated for by treaty, w^s no where provided for.^
The whole subject was full of embarrassment and
constitutional doubts; and the provision in the con-
stitution, extending the appointment to other public
ministers and consuls, as well as to ambassadors, is a
decided improvement upon the confederation.
^ 1520. In the first draft of the consdtution, the
power was given to the president to appoint officers
in all cases, not otherwise provided for by the consti-
tution ; and the advice and consent of the senate was
not required.^ But in the same draft, the power to
appoint ambassadors and judges of the Supreme Court
was given to the senate.^ The advice and consent of
the senate, and the appointment by the president of
ambassadors, and ministers, consuls, and judges of the
Supreme Court, was afterwards reported by a commit-
tee, as an amendment, and w^as unanimously adopted.^
^ 1521. The mode of appointment to oflice, pointed
out by the constitution, seems endded to peculiar com-
mendation. There are several ways, in which in ordi-
nary cases the power may be vested. It may be
confided to congress ; or to one branch of the legisla-
ture ; or to the executive alone ; or lo the execuUve in
concurrence with any selected branch. The exercise
of it by the. people at large will readily be admitted by all
considerate statesmen, to be impracticable, and therefore
need not be examined. The suggestions, already made
upon the treaty-making power, and the inconveniences
of vesting it in congress, apply with great force to that
of vesting the power of appointment to oflice in the
1 The Federalist, No. 42.
2 Journ. of Convention, p. 225. 3 Id. 223.
4 Id. 325, 326, 340, 362.
374 CONSTITUTION OF THE U. STATES. [bOOK III.
same body. It would enable candidates for office to
introduce all sorts of cabals, intrigues, and coalitions
into congress ; and not only distract their attention from
their proper legislative duties ; but probably in a very
high degree influence all legislative measures. A new
source of division and corruption would thus be infus-
ed into the public councils, stimulated by private inte-
rests, and pressed by personal solicitations. What
would be to be done, in case the senate and house
should disagree in an appointment 1 Are they to vote
in convention, or as distinct bodies ? There would be
practical difficulties attending both courses ; and expe-
rience has not justified the behef, that either would con-
duce either to good appointments, or to due responsi-
biUty.^
§ 1522. The same reasoning would apply to vesting
the power exclusively in either branch of the legisla-
ture. It would make the patronage of the government
subservient to private interests, and bring into suspicion
the modves and conduct of members of the appointing
body. There would be great danger, that the elections
at the polls might be materially influenced by this
power, to confer, or to withhold favours of this sort.^
^ 1523. Those, who are accustomed to profound
reflection upon the human character and human experi-
ence, will readily adopt the opinion, that one man of
discernment is better fitted to analyze and estimate
the peculiar quaUties, adapted to particular offices, than
any body of men of equal, or even of superior dis-
cernment.^ His sole and undivided responsibility will
naturally beget a livelier sense of duty, and a more ex-
1 See The Federalist, No. 7ti, 77. ~ Ibid.
3 The Federalist, No. 7(i ; 2 Wilson's Law Lect. 101, 192.
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 375
act regard to reputation. He will inquire with more
earnestness, and decide with more impartiality. He
will have fewer personal attachments to gratify, than a
body of men ; and will be less liable to be misled by
his private friendships and affections ; or, at all events,
his conduct will be more open to scrutiny, and less
hable to be misunderstood. If he ventures upon a
system of favoritism, he will not escape censure, and
can scarcely avoid public detection and disgrace. But
in a public body appointments will be materially influ-
enced by party attachments and dislikes ; by private
animosities, and antipathies, and partiahties ; and will
be generally founded in compromises, having little to
do with the merit of candidates, and much to do with
the selfish interests of individuals and cabals. They
will be too much governed by local, or sectional, or
party arrangements.^ A president, chosen from the na-
tion at large, may well be presumed to possess high
intelligence, integrity, and sense of character. He will
be compelled to consult public opinion in the most im-
portant appointments ; and must be interested to vin-
dicate the propriety of his appointments by selections
from those, whose qualifications are unquestioned, and
unquestionable. If he should act otherwise, and sur-
render the public patronage into the hands of profli-
gate men, or low adventurers, it will be impossible for
him long to retain public favour. Nothing, no, not
even the whole influence of party, could long screen
him from the just indignation of the people. Though
slow, the ultimate award of popular opinion would
stamp upon his conduct its merited infamy. JYo
president, however weak, or credulous, (if such a per-
376 CONSTITUTION OF THE U. STATES. [BOOK III.
son could ever under any conjuncture of circumstances
obtain the office,) would fail to perceive, or to act upon
admonitions of this sort. At all events, he would be
less likely to disregard them, than a large body of men,
who would share the responsibility, and encourage each
other in the division of the patronage of the govern-
ment.
^ 1524. But, though these general considerations
might easily reconcile us to the choice of vesting the
power of appointment exclusively in the president,
in preference to the senate, or house of representatives
alone ; the patronage of the government, and the ap-
pointments to office are too important to the public
welfare, not to induce great hesitation in vesting them
exclusively in the president. The power may be
abused ; and, assuredly, it will be abused, except in the
hands of an executive of great ffi'mness, independence,
integrity, and public spirit. It should never be for-
gotten, that in a repubUcan government offices are es-
tablished, and are to be filled, not to gratify private
interests and private attachments ; not as a means of
corrupt influence, or individual profit ; not for cringing
favourites, or court sycophants ; but for purposes of the
highest pubUc good; to give dignity, strength, purity,
and energy to the administration of the laws. It would
not, therefore, be a wise course to omit any precaution,
which, at the same time, that it should give to the pres-
ident a power over the appointments of those, who are
in conjunction with himself to execute the laws, should
also interpose a salutary check upon its abuse, acting
by way of preventive, as well as of remedy.
^ 1525. Happily, this difficult task has been achieved
by the constitution. The president is to nominate, and
thereby has the sole power to select for office ; but his
CH. XXXVII.] EXECUTIVE APPOINTMEJVTS. 377
nomination cannot confer office, unless approved by a
majority of the senate. His responsibility and theirs
is thus complete, and distinct. He can never be com-
pelled to yield to their appointment of a man unfit for
office ; and, on the other hand, they may Avithhold their
advice and consent from any candidate, Avho in their
judgment does not possess due qualifications for office.
Thus, no serious abuse of the power can take place
without the co-operation of two co-ordinate branches,
of the government, acting in distinct spheres ; and, if
there should be any improper concession on either
side, it is obvious, that from the structure and changes,
incident to each department, the evil cannot long en-
dure, and will be remedied, as it should be, by the
elective franchise. The consciousness of this check
will make the president more circumspect, and delibe-
rate in his nominations for office. He will feel, that, in
case of a disagreement of opinion with the senate, his
principal vindication must depend upon the unexce])-
tionable character of his nomination. And in case of
a rejection, the most, that can be said, is, that he had
not his first choice. He will still have a wide range of
selection ; and his responsibihty to present another
candidate, entirely quaUfied for the office, will be com-
plete and unquestionable.
§ 1526. Nor is it to be expected, that the senate
will ordinarily fail of ratifying the appointment of a
suitable person for the office. Independent of the
desire, which such a body may naturally be presum-
ed to feel, of having offices suitably filled, (when they
cannot make the appointment themselves,) there
will be a responsibility to public opinion for a rejec-
tion, which will overcome all common private wishes.
Cases, indeed, may be imagined, in which the senate
VOL. III. 48
378 CONSTITUTION OF THE U. STATES. [BOOK III.
from party motives, from a spirit of opposition, and
even from motives of a more private nature, may re-
ject a nomination absolutely unexceptionable. But
such occurrences ^vill be rare. The more common
error, (if there shall be any) will be too great a fa-
cility to yield to the executive wishes, as a means of
personal, or popular favour. A president will rarely
want means, if he shall choose to use them, to in-
duce some members of such a body to aid his nomina-
tions ; since a correspondent influence may be fairly
presumed to exist, to gratify such persons in other
recommendations for office, and thus to make them in-
directly the dispensers of local patronage. It will
be, principally, with regard to high officers, such as
ambassadors, judges, heads of departments, and other
appointments of great public importance, that the
senate will interpose to prevent an unsuitable choice.
Their own dignity, and sense of character, their duty
to their country, and their very tide to office will be
materially dependent^ upon a firm discharge of their
duty on such occasions.^
^ 1527. Perhaps the duties of the president, in the
discharge of this most delicate and important duty of
his office, were never better summed up, than in the
followins; lano;ua2;e of a distinouished commentator.^
"A proper selection and appointment of subordinate
officers is one of the strongest marks of a powerful
mind. It is a duty of the president to acquire, as far
1 The Federalist, No. 76, 77; 1 Kent's Comm. Lect. 13, p. 2G9;
Rawle on Const, ch. 14, p. 102, «fcc. ; 1 Tucker's Black. Comm. App.
340 to 343. — The whole reasoning of the Federalist, on this siihjcct, is
equally striking for its sound practical sense and its candour. I have
freely used it in the foregoing summary. The Federalist, No. 70.
2 Rawle on Const, ch. 14, p. 164.
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 379
as possible, an intimate knowledge of the capacities and
characters of his fellow citizens ; to disregard the im-
portunities of friends ; the hints or menaces of ene-
mies ; the bias of party, and the hope of popularity.
The latter is sometimes the refuge of feeble-minded
men ; but its gleam is transient, if it is obtained by a
dereliction of honest duty and sound discretion. Popu-
lar favour is best secured by carefully ascertaining, and
strictly pursuing the true interests of the people. The
president himself is elected on the supposition, that he
is the most capable citizen to understand, and promote
those interests ; and in every appointment he ought to
consider himself as executing a public trust of the
same nature. Neither should the fear of giving offence
to the public, or pain to the individual, deter him from
the immediate exercise of his power of removal, on
proof of incapacity, or infidelity in the subordinate offi-
cer. The public, uninformed of the necessity, may be
surprised, and at first dissatisfied ; but public approba-
tion ultimately accompanies the fearless and upright
discharge of duty."
§ 1528. It was objected by some persons, at the
time of the adoption of the constitution, that this un-
ion of the executive with the senate in appointments
would give the president an undue influence over
the senate. This argument is manifestly untenable,
since it supposes, that an undue influence over the
senate is to be acquired by the power of the latter to
restrain him. Even, if the argument w^ere well found-
ed, the influence of the president over the senate would
be still more increased, by giving him the exclusive
power of appointment ; for then he w ould be wholly
beyond restraint. The opposite ground was assumed
by other persons, who thought the influence of the
380 CONSTITUTION OF THE U. STATES. [bOOK III.
senate over the president would by this means become
dangerous, if not irresistible.^ There is more plausi-
bility in this suggestion ; but it proceeds upon unsatis-
factory reasoning. It is certain, that the senate cannot,
by their refusal to confirm the nominations of the
president, prevent him from the proper discharge of his
duty. The most, that can be suggested, is, that they
may induce him to yield to their favourites, instead of
his own, by resisting his nominations. But if this should
happen in a few rare instances, it is obvious, that his
means of influence would ordinarily form a counter
check. The power, which can originate the disposal
of honours and emoluments, is more likely to attract,
than to be attracted by the power, which can merely
obstruct their course.^ But in truth, in every system
of government there are possible dangers, and real
difficulties ; and to provide for the suppression of all
influence of one department, in regard to another,
would be as visionary, as to provide, that human pas-
sions and feelings should never influence public meas-
ures. The most, that can be done, is to provide checks,
and public responsibility. The plan of the constitution
1 A practical (iucstion of sonic importance arose soon after the consti-
tution was adopted, in rej^ard to the appointment of foreign ministers ;
whether the power of the senate over the appointment o-ave that body
a right to inquire into the policy of making- any sucli appointment, or
instituting any mission ; or whether tlicir power was confined to the
consideration of the mere fitness of the person nominated for tlie office.
If the former were the true interpretation of the senatorial authority,
then they would have a right to inquire into the motives, which should
induce the president to create such a diplomatic mission. It was after
debate decided by a small majority of the senate, in 171)2, that they had
no right to enter upon tiie consideration of tiie policy, or fitness of the
mission. 5 Marshall's Life of Washington, ch. 5, p. 370, note. But tho
senate have on several occasions since that time decided the otlicr way ;
and particularly in. regard lo mi^?sions to lUissia and Turkey.
2 The Federalist, No. 77.
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 881
seems as nearly perfect for this purpose, as any one
can be ; and indeed it has been less censured, than
any other important delegation of power in that instru-
ment.^
1 Whether the senate should have a negative on presidential appoint-
ments, was a question, upon which the members of the convention were
much divided. Mr. John Adams (afterwards president) was opposed to
it; and a friendly correspondence took place between him and Mr.
Roger Shcrman,of Connecticut, (one of the framers of the constitution,)
upon the subject. I extract from Mr. Pitkin's valuable History of the
United States, the substance of the arguments urged on each side, as
they present a general view of the reasoning, which had influence in
the convention.
" To some general observations of Mr. Sherman in favour of this power
in the senate, Mr. Adams made the following objections.
" ' The negative of the senate upon appointments,' he said ' is liable
to the following objections.
" ' 1. It takes away, or at least it lessens the responsibility of the ex-
ecutive— our constitution obliges me to say, that it lessens the respon-
sibility of the president. The blame of an hasty, injudicious, w^eak, or
wicked appointment, is shared so much between him and the senate,
that his part of it will be too small. Who can censure him, without
censuring the senate, and the legislatures who appoint them? all their
friends will be interested to vindicate the president, in order to screen
them from censure; besides, if an impeachment is brought before them
against an officer, are they not interested to acquit him, lest some part
of the odium of his guilt should fall upon them, who advised to his
appointment?
"*y. It turns the minds and attention of the people to the senate, a
branch of the legislature, in executive matters ; it interests another
branch of the legislature in the management of the executive ; it divides
the people between the executive and the senate: whereas all the peo-
ple ought to be uniied to watch the executive, to oppose its encroach-
ments, and resist its ambition. Senators and representatives, and their
constituents — in short, the aristocratical and democratical divisions of
society, ought to be united, on all occasions, to oppose the executive
or the monarchical branch, when it attempts to overleap its limits. But
how can this union be effected, when the aristocratical branch has
pledged its reputation to the executive by consenting to an appointment?
" '3. It has a natural tendency, to excite ambition in the senate. An
active, ardent spirit, in that house, who is rich, and able, has a great
reputation and influence, will be solicited by candidates fo;- office ; not
to introduce the idea of bribery, because, though it certainly would
force itself in, in other countries, and will probably here, when we
382 CONSTITUTIOri of the U. states. [book III.
^ 1529. The other part of the clause, while it leaves
to the president the appointment to all offices, not.
otherwise provided for, enables congress to vest the
grow populous and rich, yet it is not yet, I hope, to be dreaded. But
ambition must come in, already. A senator of great influence will be
naturally ambitious, and desirous of increasing his influence. Will he
not be under a temptation to use his influence with the president, as
well as his brother senators, to appoint persons to oflice in the several
states, who will exert themselves in elections to get out his enemies or
opposers, both in senate and house of representatives, and to get in his
friends, perhaps his instruments? Suppose a senator, to aim at the
treasury office, for himself, his brother, father, or son. Suppose him to
aim at the president's chair, or vice-president's, at the next election — or
at the oflace of war, foreign or domestic affairs, will he not naturally be
tempted to make use of bis whole patronage, bis whole influence, in
advising to appointments, both with president and senators, to get such
persons nominated, as wall exert themselves in elections of president,
vice-president, senators, and house of representatives, to increase his
interests, and promote his views ? In this point of view, I am very
apprehensive, that this defect in our constitution will have an unhappy
tendency to introduce corruption of the grossest kinds, both of ambition
and avarice, into all our elections. And this will be the worst of poisons
to our constitution ; it will not only destroy the present form of govern-
ment, but render it almost impossible to substitute in its place any free
government, even a better limited monarchy, or any other, than a des-
potism, or a simple monarchy.
"'4. To avoid the evil under the last bead, it will be in danger of
dividing the continent into two or three nations, a case that presents no
prospect but of perpetual war.
'"5. This negative on appointments is in danger of involving the
senate in reproach, obloquy, censure, and suspicion, without doing any
good. Will the senate use their negative or not ? — if not, wliy should
they have it? — many will censuie them for not using it — many will
ridicule them, call them servile, &.C., if they do use it. The very first
instance of it will expose the senators to the resentment, not only of
the disappointed candidate and all ids friends, but of the president and
all his friends ; and those will be most of the officers of government,
through the nation.
"' 6. We shall very soon have parties formed — a court and country
party — and these parties will have names given them ; one party in the
house of representatives v/ill support the president and his measures
and ministers — the other will oppose them — a similar party will be in
the senate — these parties will struggle with all their art, perhaps with
intrigue, perhaps with corruption at every election to increase their own
CH. XXXVII.] EXF.CUTIVi: APPOINTMENTS. 383
appointment of such inferior officers, as they may tliink
proper, in the president, in the courts of law, or in
the heads of departments. The propriety of this dis-
friends, and diminish their opposers. Suppose such parties formed ih
the senate, and tlien consider wiiat factions, divisions, \vc shall have
there, upon every nomination.
" ' 7. The senate have not time. You are of opinion, " that the con-
currence of the senate in the appointment to office will strengthen the
hands of the executive, and secure the confidence of the people, much
better than a select council, and will be less expensive," but in every
one of these ideas, I have the misfortune to diflfer from you. It will
weaken the hands of the executive, by lessening the obligation, grati-
tude, and attachment of the candidate to the president, by dividing his
attachment between the executive and legislature, which are natural
enemies.
"'Officers of government, instead of having a single eye, and undi-
vided attachment to the executive brancli, as they ought to have, consis-
tent with law and the constitution, will be constantly tempted to be
factious with their factious patrons in the senate. The president's own
officers, in a thousand instances, will oppose his just and constitutional
exertions, and screen themselves under the wings of their patrons and
party in the legislature. Nor will it secure the confidence of the
people; the people will have more confidence in the executive, in
executive matters, than in the senate. The people will be constantly
jealous of factious schemes in the senators to unduly influence the
executive, and of corrupt bargains between the senate and executive,
to serve each other's private views. The people will also be jealous,
that the influence of the senate will be employed to conceal, connive,
and defend guilt in executive officers, instead of being a guard and
watch upon them, and a terror to them — a council selected by the
president himself, at his pleasure, from among the senators, represen-
tatives, and nation at large, would be purely responsible — in that case,
the senate, as a body, would not be compromised. The senate would
be a terror to privy councillors — its honor would never be pledged to
support any measure or instrument of the executive, beyond justice, law,
and the constitution. Nor would a privy council be more expensive.
The whole senate must now deliberate on every appointment, and, if
they ever find time for it, you will find that a great deal of time will
be required and consumed in this service. Then the president might
have a constant executive council ; now he has none.
" ' I said, under the seventh head, that the senate would not have
time. You will find, that the whole business of this government will
be infinitely delayed, by this negative of the senate on treaties and
appointments. Indian treaties and consular conventions have been
384 CONSTITUTIOX OF THE U. STATES. [bOOK III.
cretionary power in congress, to some extent, cannot
well be questioned. If any discretion should be allowed,
its limits could hardly admit of being exactly defined ;
already waiting- for months, and the senate have not been able to find
a moment of time to attend to them ; and this evil must constantly
increase, so that the senate must be constantly sitting, and must be paid
as long as they sit.
"' But I have tired your patience. Is there any truth or importance
in these broken hints and crude surmises, or not ? To mo they appear
well founded, and very important.' •
" To these remarks Mr. Sherman replied, that he esteemed ' the
provision made for appointments to office to be a matter of very great
importance, on which the liberties and safety of the people depended,
nearly as much as on leg-islation. If that was vested in the president
alone, he might render himself despotic. It was a saying of one of the
kings of England, " that while the king could appoint the bishops and
judges, he might have what religion and laws he pleased.'''' To give that
observation its full effect, they must hold their offices during his pleas-
ure ; by such appointments, without control, a power might be gradually
established, that would be more formidable than a standing army.
"' It appears to me, that the senate is the most important branch in
the government, for the aid and support of the executive, for securing
the rights of the individual states, the government of the United States,
and the liberties of the people. The executive is not to execute its
own will, but the will of the legislature declared by the laws, and the
senate, being a branch of the legislature, will be disposed to accomplish
that end, and advise to such appointments, as will be most likely to
effisct it; from their knowledge of the people in the several states, they
can give the best information who are qualified for office. And they
will, as you justly observe, in some degree lessen his responsibility, yet,
will he not have as much remaining as he can well support? and may
not their advice enable him to make such judicious appointments, as to
render responsibility less necessary ? no person can deserve censure,
when he acts honestly according to his best discretion.
" ' The senators, being chosen by the legislatures of the states, and
depending on them for re-election, will naturally be watchful to prevent
any infringement of the rights of the states. And the government of
the United States being federal, and instituted by a number of sove-
reign states for the better security of their rights, and advancement of
their interests, they may be considered as so many pillars to support it,
and by the exercise of the state governments, peace and good order
may be preserved in the places most remote from the seat of the federal
government, as well as at the centre.
CH. XXXVII.] EXECUTIVE APPOIiNTMENTS. 385
and it might fairly be left to congress to act according
to the hghts of experience. It is diflicult to foresee,
or to provide for all the combinations of circumstances,
"'I believe this will be a better balance to secure the government,
than. three independent negatives would be.
"'I think you admit, in your Defence of the Governments of the
United States, that even one branch mig-iit serve in a diplomatic gov-
ernment, like that of the Union ; but I think the constitution is much
improved by the addition of another branch, and those of the executive
and judiciary. This seems to be an improvement on federal govern-
ment, beyond what has been made by any other states. I can see
nothing in the constitution, that will tend to its dissolution, except the
article for making amendments.
" ' That the evils, that you suggest, may happen in consequence of the
power vested in the senate, to aid the executive, appears to me to be
but barely possible. The senators, from the provision made for their
appointment, will commonly be some of the most respectable citizens in
the states, for Avisdom and probity, and superior to faction, intrigue, or
low artifice, to obtain appointments for themselves, or their friends, and
any attempts of that kind would destroy their reputation with a free
and enlightened people, and so frustrate the end they would have in
view. Their being candidates for re-election will probably be one of
the most powerful motives (next to that of their virtue) to fidelity in
office, and by that means alone would they hope for success. " He,
that walketh uprightly, walketh surely," is the saying of a divinely
inspired writer — they will naturally have the confidence of the people,
as they will be chosen by their immediate representatives, as well as
from their characters, as men of wisdom and integrity. And I see not
why all the branches of government should not harmonize in promoting
the great end of their institution, the good and happiness of the people.
"' The senators and representatives being eligible from the citizens
at large, and wealth not being a requisite qualification for either, they
will be persons nearly equal, as to wealth and other qualifications, so
that there seems not to be any principle tending to aristocracy ; which,
if I undei stand tiie term, is a government by nobles, independent of the
people, which cannot take place with us, in either respect, without a
total subversion of the constitution. I believe the more this provision
of the constitution is attended to, and experienced, the more the wisdom
and utility of it will appear. As senators cannot hold any other office
themselves, they will not be influenced, in their advice to the president,
by interested motives. But it is said, they may have friends and kindred
to provide for ; it is true they may, but when we consider their charac-
ter and situation, will they not be diffident of nominating a friend, or
relative, who may wish for an office, and be well qualified for it, lest it
VOL. III. 49
386 CONSTITUTION OF THE U. STATES. [bOOK III.
which might vary the right to appoint in such cases. In
one age the appointment might be most proper in the
president ; and in another age, in a department.
§ 1530. In the practical course of the government,
there does not seem to have been any exact hne drawn,
who are, and who are not, to be deemed inferior officers
in the sense of the constitution, whose appointment
does not necessarily require the concurrence of the
senate.^ In many cases of appointments, congress have
required the concurrence of the senate, where, perhaps,
it might not be easy to say, that it was required by the
constitution. The power of congress has been exerted
should be suspected to proceed from partiality? And will not their
fellow members have a degree of the same reluctance, lest it should be
thouoht they acted from friendship to a member of their body ? so that
their friends and connexions would stand a worse chance, in proportion
to their real merit, than strang-crs. But if the president was left to se-
lect a council for himself, though he may be supposed to be actuated by
the best motives — yet he would be surrounded by flatterers, who would
assume the character of friends and patriots, though they had no at-
tachment to the public good, no regard to the laws of their country, but
influenced wholly by self-interest, would wish to extend the power of the
executive, in order to increase their own ; they w^ould often advise hi.n to
dispense with laws, that should thwart their schemes, and in excuse
plead, that it was done from necessity to promote the public good —
they will use their own influence, induce the president to use his, to get
laws repealed, or the constitution altered, to extend his powers and
prerogatives, under pretext of advancing the public good, and gradually
render the government a despotism. This seems to be according to the
course of human aff*airs, and what may be expected from the nature of
things. I think, that members of the legislature Avould be most likely
duly to execute the laws, both in the executive and judiciary depart-
ments."*
1 Rawle on Const, ch. 1 4, p. 1G3, 1G4 ; 1 Lloyd's Debates, 480 to 600 ;
2 Lloyd's Debates, 1 to 12; Sergeant on Const, oh. 29, (ch. 31.) —
Whether the heads of departments are inferior officers in the sense of
the constitution, was much discussed, in the debate on the organization
of the department of foreign aff\iirs, in 1789. The result of the debate
seems to have been, that they v.^ere not. 1 Lloyd's Debates, 480 to 600 >
2 Lloyd's Debates, 1 to J2 ; Sergeant on Const, ch. 29, (ch.31.)
♦ 2 Pitkin'8 Hist. p. 2S5to 291.
CH. XXXVII.] EXECUTIVi: APPOINTMEXTS. :]S7
to a great extent, under this clause, in favour of the
executive department. The president is by law
invested, either solely, or with the senate, with the
appointment of all military and naval oflicers, and of
the most important civil olficers, and especially of those
connected with the administration of justice, the col-
lection of the revenue, and the supplies and expendi-
tures of the nation. The courts of the Union possess
the narrow prerogative of appointing iheir own clerk,
and reporter, without any farther patronage. The heads
of department are, in like manner, generally enti-
tled to the appointment of the clerks in their respective
offices. But the great anomaly in the system is the
enormous patronage of the postmaster general, who
is invested with the sole and exclusive authority to
appoint, and remove all deputy post-masters; and whose
power and influence have thus, by slow degrees, accu-
mulated, until it is, perhaps, not too much to say, that
it rivals, if it does not exceed, in value and extent, that
of the president himself. How long a power so vast,
and so accumulating, shall remain without any check
on the part of any other branch of the government, is a
question for statesmen, and not for jurists. But it can-
not be disguised, that it will be idle to impose constitu-
tional restraints upon high executive appointments, if this
power, which pervades every village of the republic,
and exerts an irresistible, though silent, influence in the
direct shape of oflice, or in the no less inviting form
of lucrative contracts, is suffered to remain without
scrutiny or rebuke. It furnishes no argument against
the interposition of a check, Vvhich shall require the
advice and consent of the senate to appointments, that
the power has not hitherto been abused. In its own
nature, the post-office establishment is susceptible of
388 COI^STlTUTiON OF THE U. STATES. [bOOK HI.
abuse to such an alarming degree ; the whole corre-
spondence of the country is so completely submitted to
the fidelity and integrity of the agents, who conduct it ;
and the means of making it subservient to mere state
policy are so abundant, that the only surprise is, that
it has not already awakened the public jealousy, and
been placed under more effectual control. It may be
said, without the slightest disparagement of any officer,
who has presided over it, that if ever the people are
to be corrupted, or their liberties are to be prostrated,
this establishment will furnish the most facile means,
and be the earliest employed to accomphsh such a
purpose.^
§ 1531. It is observable, that the constitution makes
no mention of any power of removal by the executive
of any officers wdiatsoever. As, how- ever, the tenure of
office of no officers, except those in the judicial depart-
ment, is, by the constitution, provided to be during
good behaviour, it follows by irresistible inference, that
all others must hold their offices during pleasure, unless
congress shall have given some other duration to their
office.^ As far as congress constitutionally possess
the power to regulate, and delegate the appointment of
" inferior officers," so far they may prescribe the term
of office, the manner in w^hich, and the persons by
whom, the removal, as well as the appointment to office,
shall be made.^ But two questions naturally occur
upon this subject. The first is, to whom, in the absence
' It is truly surprising, tliat, while the learned commentator on Black-
stone has been so feelingly alive to all other exertions of national
power and patronage, this source of patronage should not have drawn
from him a single remark, except of commendation. 1 Tuck. Black.
Comm.App. 264, 341,342.
2 1 Lloyd's Debates, 511, .512.
^ See Marburi) v. Madison, 1 Cranch, 137, 155.
CH. XXXVII.] 'executive REMOVALS. 389
of all sucli legislation, does the power of removal belong;
to the appointing power, or to the executive ; to the
president and senate, wdio have concurred in the ap-
pointment, or to the president alone? The next is,
if the power of removal belongs to the executive, in
regard to any appointments confided by the constitu-
tion to him ; whether congress can give any duration
of office in such cases, not subject to the exercise of
this power of removal? ^ Hitherto the latter has re-
mained a merely speculadve question, as all our legis-
1 Another question occurred upon carrying- into effect the act of con-
gress of 1821, for reducing the military establishment. President
Monroe, on that occasion, contended, that he had a right, in filling the
original vacancies in the artillery, and in tlie newly created office of
adjutant general, to place in them any officer belonging to the vvliole
military establishment, whether of the staflT, or of the line. " In filling
original vacancies," said he, " that is, offices newly created, it is my
opinion, that congress have no right, under the constitution, to impose
any restraint, by law, on the power granted to the president, so as ta
prevent his makin«- a free election for these offices from the whole body
of his fellow citizens." — " If the law imposed sucii a restraint, it would
be void." — " If the right of the president to fill these original vacancies,
by the selection of officers from any branch of tlie whole military estab-
lishment, was denied, he would be compelled to place in them officers
of the same grade, whose corps had been reduced, and they with them.
The effiict, therefore, of the law, as to those appointments, would be to
legislate into office, men, who liad been already legislated out of office,
taking from the president all agency in their appointment." — (Message,
12th April, 18'i-2 ; 1 Executive Journal, 28G.) The senate wholly dis-
agreed to this doctrine, contending, that, as congress possessed the
power to make rules and regulations for the land and naval forces, they
liad a right to make any, which they thought would promote the public
service. This power had been exercised from the foundation of the
government, in respect to the army and navy. Congress have a right
to fix the rule, as to promotions and appointments. Every promotion is
a new appointment, and is submitted to the senate for confirmation.
Congress, in all reductions of the army, have fixed the rules of reduc-
tion, and no executive had hitherto denied their rightful power so to do,
or hesitated to execute such rules, as had been prescribed. Sergeant
on Const, ch. 29, (ch. 3 J.)
390 COXSTITUTIOX OF THE U. STATES. [bOOK III.
lation, giving a limited duration to office, recognises
the executive power of removal, as in full force.^
^1532. The other is a vastly important practical
question ; and, in an early stage of the government,
underwent a most elaborate discussion.^ The language
of the constitution is, that the president " shall nomin-
" ate, and, by and with the advice and consent of the
" senate, appoint," &c. The power to nominate does
not naturally, or necessarily include the power to re-
move ; and if the power to appoint does include it, then
the latter belongs conjointly to the executive and the
senate. In short, under such circumstances, the remo-
"val takes place in virtue of the new appointment, by
mere operation of law. It results, and is not separa-
rable, from the appointment itself.
§ 1533. This was the doctrine maintained with great
earnestness by the Federalist ; ^ and it had a most
material tendency to quiet the just alarms of the
overwhelming influence, and arbitrary exercise of this
prerogative of the executive, which might prove fatal to
the personal independence, and freedom of opinion of
public officers, as well as to the public liberties of the
country. Indeed, it is utterly impossible not to feel,
that, if this unlimited power of removal does exist, it
may be made, in the hands of a bold and designing
1 In the debate in 1789 upon the bill for organizing the department
for foreign affairs, (the ilepartment of slate.) the very question was
discussed; and the final vote seems lo have exj)ressed the sense of the
legislature, that the power of removal by the executive could not be
abridged L)y the legislature ; at least, not in cases, where the power to
appoint was not subject to legislative delegation. See 5 iVlarshairs
Life of Washington, cli. .'3. p. IDG to 200; 1 Lloyd's Debates, 351 to
3i;G; Id. 450, 480 to GOO; 2 Lloyd's Debates, 1 to 12.
2 1 Lloyd's Debates, 351, 3(JG, 450, 4iO to GOO; 2 Lloyd's Debates, 1
to 12 ; 5 Marshall's Life of Washington, ch. 3, p. 19G to 200.
3 The Federalist, No. 77.
CH. XXXVII.] EXECUTIVE REMOVALS. 391
man, of high ambition, and feeble principles, an instru-
ment of the worst oppression, and most vindictive
vengeance. Even in monarchies, while the councils
of state are subject to perpetual fluctuations and chang-
es, the ordinary ollicers of the government are per-
mitted to remain in the silent possession of their
offices, undisturbed by the policy, or the passions of
the favourites of the court. But in a republic, where
freedom of opinion and action are guaranteed by the
very first principles of the government, if a successful
party may first elevate their candidate to office, and then
make him the instrument of their resentments, or their
mercenary bargains ; if men may be made spies upon
the actions of their neighbours, to displace them from
office ; or if fawning sycophants upon the popular leader
of the day may gain his patronage, to the exclusion of
w^orthier and abler men, it is most manifest, that elec-
tions will be corrupted at their very source ; and those,
who seek office, will have every motive to delude, and
deceive the people. It was not, therefore, without
reason, that, in the animated discussions already alluded
to, it was urged, that the power of removal was incident
to the power of appointment. That it would be a most
unjustifiable construction of the constitution, and of its
implied powers, to hold otherwise. That such a preroga-
tive in the executive was in its own nature monarchical
and arbitrary ; and eminently dangerous to the best inter-
ests, as well as the liberties, of the country. It would
convert all the officers of the country into the mere
tools and creatures of the president. A dependence,
so servile on one individual, would deter men of high
and honourable minds from engaging in the public ser-
vice. And if, contrary to expectation, such men
should be brought into office, they would be reduced
392 COXSTITUTIOX OF THE U. STATES. [bOOK III.
to the necessity of sacrificing every principle of inde-
pendence to the will of the chief magistrate, or of ex-
posing themselves to the disgrace of being removed
from office, and that too at a time, when it might no
longer be in their power to engage in other pursuits.^
§ 1534. The FederaUst, while denying the exist-
ence of the power, admits by the clearest implication
the full force of the argument, thus addressed to such a
state of executive prerogative. Its language is : " The
consent of that body (the senate) icoiild be necessary
to displace^ as ivell as to appoint. A change of the
chief magistrate, therefore, could not occasion so vio-
lent, or so general a revolution in the officers of the
government, as might be expected, if he were the sole
disposer of offices. Where a man in any station had
given satisfactory evidence of his fitness for it, a new
president would l3e restrained from attempting a change
in favour of a person, more agreeable to him, by the ap-
prehension, that a discountenance of the senate might
frustrate the attempt, and bring some degree of dis-
credit upon himself. Those, who can best estimate
the value of a steady administration, will be most dis-
posed to prize a provision, ivhich connects the official
existence of public men icith the approbation or disap-
probation of that body, which, from the greater perma-
nency of its own composition, will, in all probability, be
less subject to inconstancy, than any other member of
the government." ^ No man can fail to perceive the
entire safety of the power of removal, if it must thus be
exercised in conjunction with the senate.
1 5 Marshall's Life of Washington, ch. 3, p. 198 ; 1 Lloyd's Debates,
351,306, 450, 480 to COO.
2 The Federalist, No. 77.
CH. XXXVII.] EXECUTIVE REMOVALS. 393
§ 1535. On the other hand, those, who after the adop-
tion of the constitution held the doctrine, (lor before that
period it never appears to have been avowed by any of
its friends, although it was urged by its opponents, as
a reason for rejecting it,) that the power of removal
belonged to the president, argued, that it resulted from
the nature of the power, and the convenience, and even
necessity of its exercise. It was clearly in its nature a
part of the executive power, and was indispensable for
a due execution of the laws, and a regular administra-
tion of the public affairs. What would become of the
public interests, if during the recess of the senate the
president could not remove an unfaithful public officer ?
If he could not displace a corrupt ambassador, or head
of department, or other officer engaged in the finances,
or expenditures of the government ? If the executive,
to prevent a non-execution of the laws, or a non-per-
formance of his own proper functions, had a right to
suspend an unworthy oflicer from office, this power
was in no respect distinguishable from a power of re-
moval. In fact, it is an exercise, though in a more
moderated form, of the same power. Besides ; it w^as
argued, that the danger, that a president would remove
good men from office was wholly imaginary. It was
not by the splendour attached to the character of a par-
ticular president like Washington, that such an opinion
was to be maintained. It was founded on the struc-
ture of the office. The man, in whose favour a ma-
jority of the people of the United States would unite, to
elect him to such an office, had every probability at least
in favour of his principles. He must be presumed to
possess integrity, independence, and high talents. It
would be impossible, that he should abuse the patron-
age of the government, or his power of removal, to the
VOL. III. 50
394 CONSTITUTION OF THE U. STATES. [bOOK III.
base purposes of gratifying a party, or of ministering to
his own resentments, or of displacing upright and ex-
cellent officers for a mere difference of opinion. The
public odium, which would inevitably attach to such
conduct, would be a perfect security against it. And,
in truth, removals made from such motives, or with a
view to bestow the offices upon dependents, or favour-
ites, would be an impeachable offence.^ One of the
most distinguished framers of the constitution^ on that
occasion, after having expressed his opinion decidedly
in favour of the existence of the power of removal in
the executive, added : " In the first place he will be
impeachable by this house before the senate for such
an act of mal-administration ; for I contend, that the
wanton removal of meritorious officers would subject
him to impeachment, and removal from his high trust." ^
^ 1536. After a most animated discussion, the vote
finally taken in the house of representatives was affirm-
ative of the power of removal in the president, without
any co-operation of the senate, by the vote of thirty-
four members against twenty.^ In the senate the
clause in the bill, affirming the power, vras carried by
the casting vote of the vice-president.-'
^ 1537. That the final decision of this question so
made was greatly influenced by the exalted character
of the president, then in office, was asserted at the
time, and has always been believed. Yet the doctrine
1 1 Lloyd's Debates, 351, 3GG, 450, 480 to 600 ; 2 Lloyd's Debates, J
to 12; 4 Elliot's Debates, 141 to 207; 5 Marsh. Life of Washington,
ch. 3, p. 196 to 200.
2 Mr. Madison, 1 Lloyd's Debates, 503.
3 Ibid.
4 5 Marsh. Life of Washington, ch. 3, p. 199; 1 Lloyd's Debates, 599 ;
2 Lloyd's Debates, 12.
5 Senate Journal, July 18, 1789, p. 42.
CH. XXXVII.] EXECUTIVE REMOVALS. 395
was opposed, as well as supported, by the highest tal-
ents and patriotisra of the country. The public, how-
ever, acquiesced in ' this decision ; and it constitutes,
perhaps, the most extraordinary case in the history of
the government of a power, conferred by implication on
the executive by the assent of a bare majority of con-
gress, which has not been questioned on many other
occasions.^ Even the most jealous advocates of state
rights seem to have slumbered over this vast reach of
authority ; and have left it untouched, as the neutral
ground of controversy, in which they desired to reap
no harvest, and from which they retired without leaving
any protestations of title or contest.^ Nor is this gen-
eral acquiescence and silence without a satisfactory ex-
planation. Until a very recent period, the power had
been exercised in few cases, and generally in such, as
led to their own vindication. During the administra-
tion of President Washington few removals were made,
and none without cause ; few were made in that of the
first President Adams. In that of President Jefferson
the circle was greatly enlarged ; but yet it was kept with-
in narrow bounds, and with an express disclaimer of the
right to remove for differences of opinion, or otherwise,
than for some clear public good. In the administra-
tions of the subsequent presidents, Madison, Monroe,
and J. Q. Adams, a general moderation and forbear-
ance were exercised with the approbation of the coun-
try, and without disturbing the harmony of the system.
Since the induction into office of President Jackson,
1 1 Kent's Comm. Lcct. 14, p. 289, 290.
2 Mr. Tucker in his Commentaries on Blackstone scarcely alludes to
it. (See 1 Tucker's Black. Comm. App. *341.) On the other hand, Mr.
Chancellor Kent has spoken on it with becoming freedom and perti-
nence of remark. 1 Kent's Comm. Lect. 14, p. 289, 290.
396 CONSTITUTION OF THE U. STATES. [BOOK III.
an opposite course has been pursued ; and a system of
removals and new appointments to office has been pur-
sued so extensively, that it has reached a very large
proportion of all the offices of honour and profit in the
civil departments of the country. This is matter of
fact ; and beyond the statement of the fact ^ it is not
the intention of the Commentator to proceed. This
extraordinary change of system has awakened general
attention, and brought back the whole controversy, with
regard to the executive power of removal, to a severe
scrutiny. IMany of the most eminent statesmen in the
country have expressed a deliberate opinion, that it is
utterly indefensible, and that the only sound interpre-
tation of the constitution is that avovv^ed upon its adop-
tion ; that is to say, that the power of removal belongs
to the appointing power.
1 In proof of this statement, lest it should be questioned, it is proper to
say, that a list of removals (confessedly imperfect) between the 4th of
March, 1S29, Avhen President Jackson came into office, and the 4th of
March, 1830, has been published, by which it appears, that, during that
period, there were removed, eight persons in the diplomatic corps ; thirty-
six in the executive departments ; and in the other civil departments,
including consuls, marshals, district attorneys, collectors, and other offi-
cers of the customs, registers and receivers, one hundred and ninety-
nine persons. These officers include a very large proportion of all the
most lucrative offices under the national government. Besides these,
there were removals in the post-office department, during the same pe-
riod, of four hundred and ninety-one persons. (See Mr. Post-Master
General Barry's Report of 24th of March, 1830.) This statement will
be found in the National Intelligencer of the 27th of Sept., 1832, with
the names of the parties (except post-masters ;) and I am not aware,
that it has ever been denied to be correct. It is impossible for me to
vouch for its entire accuracy. It is not probable, that, from the first or-
ganization of the government, in J 789, down to 1829, the aggregate of
all the removals made amounted to one tiiird of this number. In Presi-
dent Washingto 's administration of eight years, only nine removals
took place. See Mr. Clayton's Speech in the Senate, on the 4th of
March, J 830.
CH. XXXVII.] EXECUTIVE REMOVALS. 397
§ 1538. Whether the predictions of the original ad-
vocates of the executive power, or those of the oppos-
ers of it, are likely, in the future progress of the govern-
ment, to be realized, must be left to the sober judg-
ment of the community, and to the impartial award of
time. If there has been any aberration from the true
constitudonal exposition of the power of removal,
(which the reader must decide for himself,) it will be
difficult, and perhaps impracticable, after forty years'
experience, to recall the practice to the correct theory.
But at all events, it will be a consolation to those, who
love the Union, and honour a devotion to the patriotic
discharge of duty, that in regard to " inferior officers,"
(which appellation probably includes ninety-nine out of
a hundred of the lucrative offices in the government,)
the remedy for any permanent abuse is still within the
power of congress, by the simple expedient of requir-
ing the consent of the senate to removals in such
cases.
^ 1539. Another point of great practical importance
is, when the appointment of any officer is to be deem-
ed complete. It will be seen in a succeeding clause,
that the president is to " commission all the officers of
" the United States." In regard to officers, w^ho are
removable at the will of the executive, the point is un-
important, since they may be displaced, and their com-
mission arrested at any moment. But if the officer is
not so removable, the time, when the appointment is
complete, becomes of very deep interest.
§ 1540. This subject was very elaborately discussed
in the celebrated case of Marburi/ v. Madison^ Mar-
bury had been appointed a jusdce of the peace of the
1 1 Cranch's R. 137 ; S. C. 1 Peters's Cond. R. 270.
398 COXSTITUTION OF THE U. STATES. [bOOK III.
District of Columbia for five years, according to an act
of congress, by President Adams, by and with the con-
sent of the senate. His commission had been signed
by the president, and was sealed, and deposited in the
department of state at the time of Mr. JefTerson's ac-
cession to the presidency ; and was afterwards with-
held from him by the direction of the latter. An act
of congress had directed the secretary of state to
keep the seal of ihe United States ; and to make out,
and record, and affix the seal to all civil commissions
to officers of the United States, to be appointed by the
president, after he should have signed the same.
Upon the fullest deliberation, the court were of opinion,
that, when a commission has been signed by the presi-
dent, the appointment is final and complete. The
officer appointed has, then, conferred on him legal
rights, which cannot be resumed. Until that, the dis-
cretion of the president may be exercised by him, as
to the appointment ; but, from that moment, it is irre-
vocable. His power over the office is then terminat-
ed in all cases, where by law the officer is not remov-
able by him. The right to the office is then in the per-
son appointed, and he has the absolute, unconditional
power of accepting, or rejecting it. Neither a delivery
of the commission, nor an actual acceptance of the
office, is indispensable to make the appointment per-
fect.
§ 1541. The reasoning, upon which this doctrine is
founded, cannot be better elucidated, than by using the
very language of the opinion, in which it is promulgat-
ed. After quoting the words of the constitution, and
laws above referred to, it proceeds as follows :
^ 1542. "These are the clauses of the constitution
and laws of the United States, which affect this part of
CH. XXXVII.] EXECUTIVE REMOVALS, 399
the case. They seem to contemplate three distinct
operations : (1.) The nomination. This is the sole act
of the president, and is completely voluntary. (2.)
The appointment. This is also the act of the president ;
and is also a voluntary act, though it can only be per-
formed by and with the advice and consent of the sen-
ate. (3.) The commission. To grant a commission
to a person appointed, might perhaps be deemed a
duty enjoined by the constitution. * He shall,' says that
instrument, 'commission all the officers of the United
States.' The acts of appointing to office, and commis-
sioning the person appointed, can scarcely be consid-
ered as one and the same ; since the power to perform
them is given in two separate and distinct sections of
the constitution. The distinction between the appoint-
ment and the commission will be rendered more appa-
rent, by adverting to that provision in the second sec-
tion of the second article of the constitution, which
authorizes congress *to vest, by law, the appointment
of such inferior officers, as they think proper, in the
president alone, in the courts of law, or in the heads of
departments ; ' thus contemplating cases, where the
law may direct the president to commission an officer
appointed by the courts, or by the heads of depart-
ments. In such a case, to issue a commission w ould
be apparently a dut}^ distinct from the appointment, the
performance of w^hich, perhaps, could not legally be
refused. Although that clause of the constitution,
which requires the president to commission all the
officers of the United States, may never have been
applied to officers appointed otherwise, than by him-
self; yet it would be difficult to deny the legislative
power to apply it to such cases. Of consequence the
constitutional distinction between the appointment to
400 CONSTITUTION OF THE U. STATES. [bOOK III.
an office, and the commission of an officer, who has
been appointed, remains the same, as if in practice the
president had commissioned officers appointed by an
authority, other than his own. It follows, too, from the
existence of this distinction, that, if an appointment
was to be evidenced by any public act, other than the
commission, the performance of such public act would
create the officer ; and, if he was not removable at the
will of the president, would either give him a right to
his commission, or enable him to perform the duties
without it. These observations are premised solely
for the purpose of rendering more intelligible those,
which apply more directly to the particular case under
consideration.
^ 1543. "This is an appointment made by the presi-
dent, by and with the advice and consent of the senate,
and is evidenced by no act but the commission itself.
In such a case, therefore, the commission and the ap-
pointment seem inseparable ; it being almost impossi-
ble to show an appointment otherwise, than by proving
the existence of a commission. Still the commission is
not necessarily the appointment; though conclusive
evidence of it. But at what stage does it amount to
this conclusive evidence ? The answ er to this ques-
tion seems, an obvious one. The appointment, being
the sole act of the president, must be completely evi-
denced, when it is shown, that he has done every thing
to be performed by him. Should the commission, in-
stead of being evidence of an appointment, even be
considered as consdtuting the appointment itself; still,
it would be made, when the last act to be done by the
president was performed, or, at farthest, when the
commission was complete. The last act to be done
by the president, is the signature of the commission.
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 401
He has then acted on the advice and consent of the
senate to his own nomination. The time for delibera-
tion has then passed. He has decided. His judgment,
on the advice and consent of the senate concurnng
with his nomination, has been made, and the officer is
appointed. This appointment is evidenced by an open,
unequivocal act ; and being the last act required from
the person making it, necessarily excludes the idea of
its being, so far as respects the appointment, an inchoate
and incomplete transaction. Some point of time must
be taken, when the power of the executive over an
officer, not removable at his will, must cease. That
point of time must be, when the constitutional powder
of appointment has been exercised. And this pow^er
has been exercised, when the last act, required from
the person possessing the powder, has been performed.
This last act is the signature of the commission. This
idea seems to have prevailed with the legislature, w^hen
the act passed, converting the department of foreign
affairs into the department of state. By that act it is
enacted, that the secretary of state shall keep the seal
of the United States, ' and shall make out and record,
and shall affix the said seal to all civil commissions to
officers of the United States, to be appointed by the
president : ' ' Provided, that the said seal shall not be
affixed to any commission, before the same shall have
been signed by the president of the United States ;
nor to any other instrument or act, without the special
warrant of the president therefor.' The signature is a
warrant for affixing the great seal to the commission ;
and the great seal is only to be affixed to an instrument,
which is complete. It attests, by an act supposed to
be of pubhc notoriety, the verity of the presidential
signature. It is never to be affixed, till the commission
VOL. iir. 51
402 CONSTITUTION OF THE U. STATES. [bOOK III,
all the ^Yeight, which it appears possible to give them,
is signed, because the signature, which gives force and
effect to the commission, is conclusive evidence, that
the appointment is made. The commission being
signed, the subsequent duty of the secretary of state is
prescribed by law, and not to be guided by the will of
the president. He is to affix the seal of the United
States to the commission, and is to record it. This is
not a proceeding, which may be varied, if the judgment
of the executive shall suggest one more eligible ; but
is a precise course accurately marked out by law, and
is to be strictly pursued. It is the duty of the secre-
tary of state to conform to the law, and in this he is an
officer of the United States, bound to obey the laws.
He acts, in this respect, as has been very properly
stated at the bar, under the authority of law, and not
by the instructions of the president. It is a ministerial
act, w^hich the law enjoins on a particular officer for a
particular purpose. If it should be supposed, that the
solemnity of affixing the seal is necessary, not only to
the validity of the commission, but even to the com-
pletion of an appointment ; still, when the seal is affix-
ed, the appointment is made, and the commission is
valid. No other solemnity is required by law ; no
other act is to be performed on the part of government.
All, that the executive can do to invest the person with
his office, is done ; and unless the appointment be then
made, the executive cannot make one without the co-
operation of others. After searching anxiously for the
principles, on w^hich a contrary opinion may be sup-
ported, none have been found, which appear of suffi-
cient force to maintain the opposite doctrine. Such, as
the imagination of the court could suggest, have been
very deliberately examined, and after allowing them
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 403
they do not shake the opinion, which has been form-
ed.
§ 1544. " In considering this question, it has been
conjectured, that the commission may have been assim-
ilated to a deed, to the vaUdity of which dehvery is
essential. This idea is founded on the supposition,
that the commission is not merely evidence of an ap-
pointment, but is itself the actual appointment ; a sup-
position by no means unquestionable. But, for the
purpose of examining this objection fairly, let it be
conceded, that the principle claimed for its support -is
established. The appointment being, under the con-
stitution, to be made by the president personally, the
dehvery of the deed of appointment, if necessary to its
completion, must be made by the president also. It is
not necessary, that the livery should be made person-
ally to the grantee of the office. It never is so made.
The law would seem to contemplate, that it should be
made to the secretary of state, since it directs the sec-
retary to affix the seal to the commission, after it shall
have been signed by the president. If, then, the act of
hvery be necessary to give validity to the commission,
is has been dehvered, when executed and given to the
secretary for the purpose of being sealed, recorded, and
transmitted to the party. But in all cases of letters
patent, certain solem.nities are required by law,
which solemnities are the evidences of the validity
of the instrument. A formal delivery to the person
is not among them. In cases of commissions the sign
manual of the president, and the seal of the United
States, are those solemnities. This objection, therefore,
does not touch the case.
^ 1545. "It has also occurred, as possible, and bare-
ly possible, that the transmission of the commission, and
404 CONSTITUTION OF THE U. STATES. [bOOK III.
the acceptance thereof, might be deemed necessary to
complete the right of the plaintiff. The transmission
of the commission is a practice directed by conven-
ience, but not by law. It cannot therefore be necessary
to constitute the appointment, which must precede it,
and which is the mere act of the president. If the ex-
ecutive required, that every person, appointed to an
office, should himself take means to procure his
commission, the ap})ointment would not be the less
vahd on that account. The appointment is the sole
act of the president ; the transmission of the commis-
sion is the sole act of the officer, to whom that duty is
assigned, and may be accelerated, or retarded by cir-
cumstances, which can have no influence on the ap-
pointment. A commission is transmitted to a person
already appointed ; not to a person to be appointed, or
not, as the letter enclosing the commission should hap-
pen to get into the post-office, and reach him in safety,
or to miscarry.
^ 1546. "It may have some tendency to elucidate
this point, to inquire, whether the possession of the
original commission be indispensably necessary to
authorize a person, appointed to any office, to perform
the duties of that office. If it was necessary, then a
loss of the commission would lose the office. Not only
negligence, but accident or fraud, fire or theft, might
deprive an individual of his office. In such a case, I
presume, it could not be doubted, but that a copy from
the record of the office of the secretary of state would
be, to every intent and purpose, equal to the original.
The act of congress has expressly made it so. To give
that copy validity, it would not be necessary to prove,
that the original had been transmitted, and afterwards
lost. The copy would be complete evidence, that the
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 405
original had existed, and that the appointment had
been made ; but, not that the original had been trans-
mitted. If, indeed, it should appear, that the original
had been mislaid in the office of state, that circum-
stance would not affect the operation of the copy.
When all tlie requisites have been performed, which
authorize a recording officer to record any instrument
whatever, and the order for that purpose has been
given, the instrument is, in law, considered as record-
ed, although the manual laLour of inserting it in a book
kept for that purpose may not have been performed.
In the case of commissions, the law orders the secretary
of state to record them. When, therefore, they are sign-
ed and sealed, the order for their being recorded is
given ; and whether inserted in the book, or not, they
are in law recorded. A copy of this record is declar-
ed equal to the original, and the fees, to be paid by a
person requiring a copy, are ascertained by law. Can
a keeper of a public record erase therefrom a commis-
sion, which has been recorded 1 Or can he lefuse a
copy thereof to a person demanding it on the terms
prescribed by law ? Such a copy would, equally with
the original, authorize the justice of peace to proceed
in the performance of his duty, because it would, equal-
ly with the original, attest his appointment.
^ 1547. "If the transmission of a commission be not
considered, as necessary to give validity to an appoint-
ment, still less is its acceptance. The appointment is
the sole act of the president ; the acceptance is the
sole act of the officer, and is, in plain common sense,
posterior to the appointment. As he may resign, so
may he refuse to accept. But neither the one, nor the
other, is capable of rendering the appointment a non-
entity. That this is the understanding of the govern-
406 CONSTITUTION OF THE U. STATES. [bOOK III.
ment is apparent from the whole tenor of its conduct.
A comn^ission bears date, and the salary of the officer
commences, from his appointment ; not from the
transmission, or acceptance of his commission. When
a person, appointed to any office, refuses to accept that
office, the successor is nominated in the place of the
person, who has declined to accept, and not in the
place of the person, who had been previously in office,
and had created the original vacancy. It is, therefore,
decidedly the opinion of the court, that, when a com-
mission has been signed by the president, the appoint-
ment is made ; and that the commission is complete,
when the seal of the United States has been affixed to
it by the secretary of state. Where an officer is re-
movable at the will of the executive, the circumstance,
wdiich completes his appointment, is of no concern ;
because the act is at any time revocable ; and the
commission may be arrested, if still in the office. But
when the officer is not removable at the will of the ex-
ecutive, the appointment is not revocable, and cannot
be annulled. It has conferred legal rights, which can-
not be resumed. The discretion of the executive is to
be exercised, until the appointment has been made.
But having once made the appointment, his power over
the office is terminated in all cases, where, by law, the
officer is not removable by him. The right to the of-
fice is then in the person appointed, and he has the
absolute, unconditional power of accepdng or rejecting
it. Mr. Marbury, then, since his commission was sign-
ed by the president, and sealed by the secretary of
state, was appointed ; and as the law, creadng the of-
lice, gave the officer a right to hold for five years, in-
dependent of the executive ; the appointment was not
revocable but vested in the officer legal rights, which
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 407
are protected by the laws of his country. To with-
hold his commission, therefore, is an act deemed by the
court not warranted by law, but violative of a vested
legal right." ^
1 See also Rawle on the Constitution, cli. 14, p. KM] ; Scr(rGant on
Constitution, ch. 29, [cli. ;31.] — The reasoning of this opinion would
seem to be, in a judicial view, absolutely irresistible ; and, as such, re-
ceived at the time a very general approbation from the profession.
It was, however, totally disregarded by President Jefferson, who, on this,
as on other occasions, placed his right of construing the constitution
and laws, as wholly above, and independent of, judicial decision. In his
correspondence, he repeatedly alluded to this subject, and endeavour-
ed to vindicate his conduct. In one of his letters lie says, " In the case
of Marbury and MaJison, the federal judges declanuJ, that commissions,
signed and sealed by the president, vv^ere valid, although not delivered.
I deemed delivery essential to complete a deed, wdiich, as lono- as it
remains in the hands of the party, is, as yet, no deed ; it is inposse only,
but not in esse ; and 1 withheld the dtdivery of the commission. They
cannot issue a mandamus to the president, or legislature, or to any of
their officers." * It is true, that the constitution does not authorize the
Supreme Court to issue a mandamus in the exercise of on^{»«/ jurisdic-
tion, as was the case in JSlarburyv. Madison; and it was so decided by
the Supreme Court. But the Act of Congress of 1789, ch. 20, § ];}, had
actually conferred the very power on the Supreme Court, by providino-
that the Supreme Court shall have power "to issue writs of mandamus'
&c. to any courts appointed, or persons holding office under the author-
ity of the United States." So, that the Supreme Court, in declinino-
jurisdiction, in effect declared, that the act of congress was, in this re"^
spect, unconstitutional. But no lawyer could doubt, that congress
might confer the power on any other court; and the Supreme Court
itself might issue a mandamus in the exercise of its appellate jurisdic-
tion. But the whole argument of President Jefferson proceeds? on an
assumption, which is not proved. He says, delivery is essential to
a deed. But, assuming this to be correct in all cises, it does not
establish, that a commission is essential to every appointment, or that a
commission must, by the constitution, be by a deed ; or that an appoint-
ment to office is not complete, before the commission is sealed, or deliv-
ered. The question is not, whether a deed at the common law is per-
fect without a delivery ; bat whether an appointment under the consti-
tution is perfect without a delivery of a commission. If a delivery were
necessary, when the president had signed the commission, and deliver-
ed it to the secretary to be sealed aud recorded, such delivery would be
* 4 Jefferson's Corrcsp. 317 ; Id. 75 j Id. 372, 373.
408 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1548. Another question, growing out of appoint-
ments, is, at what time the appointee is to be deemed
in office, whether from the time of his acceptance of
the office, or his complying with the preliminary re-
quisitions, (such, as taking the oath of office, giving
bond for the fliithful discharge of his duties, &c.) or his
actual entry upon the duties of his office. This ques-
tion may become of great practical importance in cases
of removals from office, and also in cases, where by
law officers are appointed for a limited term. It fre-
quently happens, that no formal removal from office is
made by the president, except by nominating another
person to the senate, in place of the person removed,
and without any notice to him. In such a case, is the
actual incumbent in office de facto removed immedi-
ately upon the nomination of a new oilicer'? If so,
then all his subsequent acts in the oOice are void,
though he may have no notice of the nonu"nation, and
may, from the delay to give such notice, go on for a
month to perform its functions. Is the removal to be
deemed complete only, when the nomination has been
conhrmed 7 Or, when notice is actually given to the
incumbent? Or, when the appointee has accepted the
sufficient, for it is the final act required to bo done by the president.
But, in point of fact, the seal is not the seal of the president, but of the
United States. The commission, seali;d by the president, is not his
deed ; and it does not take effect, as his deed. It is merely a verifica-
tion of his act by the highest evidence. The doctrine, then, of deeds
of private persons, at the common law, is inapplicable. It is painful to
observe in President Jefferson's writings, the constant insinuations
a^rainst public men and public bodies, who differ from his own opinions
or measures, of being governed by improper or unwortliy motives, or
mere party spirit. The very letters here cited (4 Jefferson's Corresp.
75, 317, 372) afford illustrations, not to be mistaken ; and certainly
diminish the value, which might otherwise be attributed to his crit-
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 409
office ? ^ Hitherto this point does not seem to have
received any judicial decision, and therefore must be
treated as open to controversy. If the decision should
be, that in such cases the nomination without notice
creates a removal de facto, as well as de jure, it is ob-
vious, that the pubhc, as well as private individuals, may
become sufferers by unintentional and innocent viola-
tions of law. A collector, for instance, may receive
duties, may grant ckarances to vessels, and may per-
form other functions of the office for months after such
a nomination, without the slightest suspicion of any want
of legal authority. Upon one occasion it w as said by
the Supreme Court, that " w^hen a person appointed to
any office (under the United States) refuses to accept
that office, the successor is nominated in the place of
the person, who has dechned to accept, and not in the
place of the person, who had been previously in office,
and had created the original vacancy." ^ From this
remark, it would seem to be the opinion of the court,
that the office is completely filled in every case of va-
cancy, as soon as the appointment is complete ; inde-
pendently of the acceptance of the appointee. If so, it
would seem to follow, that the removal must, at all
events, be complete, as soon as a new appointment is
made.^
^ 1549. The next clause of the constitution is, "The
"president shall have power to fill up all vacancies, that
" may happen during the recess of the senate, by grant-
1 See Johnson v. United States, 5 Mason's R. 4Q5, 438, 439.
2 Marbunj v. Madison, 1 Cranch's R. lo7 ; S. C. 1 Peters's Cond. R.
270.
3 See Johnson v. United States, 5 Mason's R. 425, 438, 439 ; United
Slates V. Kirkpntrick, 4 Whe?t, R. 733, 734.
VOL. III. 52
410 CONSTITUTION OF THE U. STATES. [bOOK III.
" ing commissions, which shall expire at the end of their
"next session."
§ 1550. This clause was not in the first draft of the
constitution ; but was afterwards inserted by an amend-
ment, apparently without objection.^ One of the" most
extraordinary instances of a perverse intention to mis-
represent, and thereby to render odious the constitution,
was in the objection, solemnly urged against this
clause, that it authorized the president to fill vacancies
in the senate itself, occurring during the recess ; ^ a
power, which, in another clause of the constitution, was
expressly confided to the state executive. It is wholly
unnecessary, however, now to dwell .upon this prepos-
terous suggestion, since it does not admit of a doubt,
that the powder given to the president is applicable sole-
ly to appointments to ofiices under the United States,
provided for by the constitution and laws of the Union.
It is only another proof of the gross exaggerations, and
unfounded alarms, which were constantly resorted to for
the purpose of defeating a system, which could scarcely
fail of general approbation, if it was fairly understood.^
^ 1551. The propriety of this grant is so obvious,
that it can require no elucidation. There was but one
of two courses to be adopted ; either, that the senate
should be perpetually in session, in order to provide for
the appointment of ofl^icers ; or, that the president
should be authorized to make temporary appointments
during the recess, which should expire, when the senate
should have had an opportunity to act on the subject.
The former course would have been at once burthen-
some to the senate, and expensive to the public. The
latter combines convenience, promptitude of action, and
general security.
1 Journal of Convention, 225, 341.
2 The Federalist, No. C7. 3 id. No. 67.
CH. XXXVII.] EXECUTIVE APPOINTMENTS. 411
§ 1552. The appointments so made, by the very lan-
guage of the constitution, expire at the next session of
the senate ; and the commissions given by him have the
same duration. When the senate is assembled, if the
president nominates the same officer to the office, this
is to all intents and purposes a new nomination to
office ; and, if approved by the senate, the appointment is
a new appointment, and not a mere continuation of the
old appointment. So that, if a bond for fidelity in office
has been given under the first appointment and com-
mission, it does not apply to any acts done under the
new appointment and commission.^
§ 1553. The language of the clause is, that the presi-
dent shall have power to fill up vacancies, that may
happen during the recess of the senate. In 1813,
President Madison appointed and commissioned minis-
ters to negotiate the treaty of peace of Ghent during
the recess of the senate ; and a question was made,
whether he had a constitutional authority so to do,
there being no vacancy of any existing office ; but
this being the creation of a new office. The sen-
ate, at their next session, are said to have entered
a protest against such an exercise of power by the ex-
ecutive. On a subsequent occasion, (April 20, 1822,)
the senate seem distinctly to have held, that the presi-
dent could not create the office of minister, and make
appointments to such an office during the recess, with-
out the consent of the senate. By " vacancies " they
understood to be meant vacancies occurring from death,
resignation, promotion, or removal. The word " hap-
pen " had relation to some casualty, not provided for
by law. If the senate are in session, when offices are
created by law, which have not as yet been filled, and
1 United States v. Kirkpatrick, 9 Wheat. R. 720, 733, TM, 735.
412 CONSTITUTION OF THE U. STATES. [bOOK III.
nominations are not then made to them by the presi-
dent, he cannot appoint to such offices during the re-
cess of the senate, because the vacancy does not
happen during the recess of the senate. In many
instances, where offices are created by law, special
power is on this very account given to the president to
fill them during the recess ; and it was then said, that
in no other instances had the president ffiled such va-
cant offices without the special authority of law.^
^ 1554. The next section of the second article is,
"He (the president) shall from time to time give to
" the congress information of the state of the Union, and
" recommend to their consideration such measures, as
"he shall judge necessary and expedient. He may,
" on extraordinary occasions, convene both houses, or
" either of them, and, in case of a disagreement between
" them, with respect to the time of adjournment, he may
" adjourn them to such time, as he shall think proper.
"He shall receive ambassadors, and other public minis-
" ters. He shall take care, that the laws be faithfully
" executed ; and shall commission all the officers of the
" United States."
§ 1555. The first part, relative to the president's
giving information and recommending measures to con-
gress, is so consonant with the structure of the execu-
tive departments of the colonial and state governments,
with the usages and practice of other free governments,
with the general convenience of congress, and with a
due share of responsibiUty on the part of the executive,
that it may well be presumed to be above all real ob-
jection. From the nature and duties of the executive
department, he must possess more extensive sources of
1 Sergeant on Const, ch. 29, (ch. r*l); 2 Executive Journal, p. 415,
iOO ; 3 Excfutive Journal, 2'J7
CH. XXXVII.] EXECUTIVE DUTIES. 413
information, as well in regard to domestic as foreign
affiiirs, than can belong to congress. The true work-
ings of the laws ; the defects in the nature or arrange-
ments of the general systems of trade, finance, and jus-
tice ; and the military, naval, and civil establishments of
the Union, are more readily seen, and more constantly
under the view of the executive, than they can possibly
be of any other department. There is great wisdom,
therefore, in not merely allowing, but in requiring, the
president to lay before congress allfacts and information,
which may assist their deliberations ; and in enabling
him at once to point out the evil, and to suggest the rem-
edy. He is thus justly made responsible, not merely for
a due administration of the existing systems, but for
due diligence and examination into the means of im-
proving them.^
§ 1556. The power to convene congress on extraordi-
nary occasions is indispensable to the proper operations,
and even safety of the government. Occasions may
occur in the recess of congress, requiring the govern-
ment to take vigorous measures to repel foreign aggres-
1 See 1 Tuck. Black. Cornm. App. 343, 344, 345 ; The Federalist, No.
78 ; Ravvle on Const, ch. 16, p. 171. — The practice in the time of Presi-
dent Washington, and President Jolin Adams was, for the president, at
the opening of each session of congress to meet both Houses in person,
and deliver a speech to them, containing his views on public affairs, and
his recommendations of measures. On other occasions he simply ad-
dressed written messages to them, or either of them, according to the
nature of the message. To the speeches thus made a written answer
was given by each house ; and thus an opportunity was afforded by the
opponents of the administration to review its v/hole policy in a single
debate on the answer. That practice was discontinued by President
Jefferson, who addressed all his communications to congress by written
messages; and to these no answers were returned.* The practice thus
introduced by him has been ever since exclusively pursued by all suc-
ceeding presidents, whether for the better has been gravely doubted by
some of our most distinguished statesmen.
* Eawlo on Const, cli. 16, p. 17J, 172, 173.
414 CONSTITUTION OF THE U. STATES. [bOOK III.
sions, depredations, and direct hostilities ; to provide
adequate means to mitigate, or overcome unexpected
calamities ; to suppress insurrections ; and to provide
for innumerable other important exigencies, arising out
of the intercourse and revolutions among nations.^
^ 1557. The power to adjourn congress in cases of
disagreement is equally indispensable ; since it is the
only peaceable way of terminating a controversy, which
can lead to nothing but distraction in the public coun-
cils."
§ 1558. On the other hand, the duty imposed upon
him to take care, that the laws be faithfully executed,
follows out the strong injunctions of his oath of office,
that he will " preserve, protect, and defend the consti-
tution." The great object of the executive department
is to accompUsh this purpose ; and without it, be the
form of government whatever it may, it will be utterly
w^orthless for offence, or defence ; for the redress of
grievances, or the protection of rights ; for the happi-
ness, or good order, or safety of the people.
^ 1559. The next power is to receive ambassadors
and other public ministers. This has been already
incidentally touched. A similar power existed under
the confederation; but it was confined to receiving
"ambassadors," which word, in a strict sense, (as has
been already stated,) comprehends the highest grade
only of ministers, and not those of an inferior character.
The policy of the United States would ordinarily prefer
the employment of the inferior grades ; and therefore
the description is proper-ly enlarged, so as to include all
classes of ministers.^ Why the receiving of consuls
1 See 1 Tuck. Black. Comm. App. 343, 344, 345 ; The Federalist, No.
78 ; Rawle on Const, ch. IG, p. 171.
2 Id. ibid. ^ The Federalist, No. 42.
CH. XXXVII.] EXECUTIVE POWERS. 415
was not also expressly mentioned, as the appointment
of them is in the preceding clause, is not easily to be
accounted for, especially as the defect of the confedera-
tion on this head was fully understood.^ The power,
however, may be fairly inferred irom other parts of the
constitution ; and indeed seems a general incident to
the executive authority. It has constantly been exer-
cised without objection ; and foreign consuls have never
been allowed to discharge any functions of office, until
they have received the exequatur of the president.^
Consuls, indeed, are not diplomatic functionaries, or
political representatives of a foreign nation ; but are
treated in the character of mere commercial agents.^
§ 1560. The power to receive ambassadors and min-
isters is always an important, and sometimes a very
delicate function; since it constitutes the only accredited
medium, through which negotiations and friendly rela-
tions are ordinarily carried on with loreign powers. A
government may in its discretion lawfully refuse to re-
ceive an ambassador, or other minister, without its
affording any just cause of war. But it would generally
be deemed an unfriendly act, and might provoke hos-
tilities, unless accompanied by conciliatory explanations.
A refusal is sometimes made on the ground of the bad
character of the minister, or his former offensive con-
duct, or of the special subject of the embassy not: being
proper, or convenient for discussion.^ This, however,
is rarely done. But a much more delicate occasion is,
1 The Federalist, No. 42.
2 Rawle on Const, ch. '24, p. 224, 2:25.
3 Ibid. ; 1 Kent's Comm. Lect. 2, p. 40 to 44 ; The Indian Chief, 3
Rob. R. 22 ; The Beilo Coiunnes, G Wlieat. R. 152, l(ib ; Vivcash v.
Bukcr, 3 Maule & Eehv. R. 2^4.
4 J Kent's Comm. Lect. 2, p. 39; Rutherfurth'.^ riirJit. B 2, ch. 9,
§ 20; Grotius, Lib. 2, ch. b\ § 1, 3, 4.
416 CONSTITUTIOxV OF THE U. STATES. [bOOK III.
when a civil war breaks out in a nation, and two na-
tions are formed, or two parties in the same nation,
each claiming the sovereignty of the whole, and the
contest remains as yet undecided, fagrante hello. In
such a case a neutral nation may very properly withhold
its recognition of the supremacy of either party, or of the
existence of two independent nations; and on that ac-
count refuse to receive sn ambassador from either.^ It is
obvious, that in such cases the simple acknowledgment
of the minister of either party, or nation, might be deem-
ed taking part against the other ; and thus as affording
a strong countenance, or opposition, to rebellion and
civil dismemberment. On this account, nations, placed
in such a predicament, have not hesitated sometimes to
declare war against neutrals, as interposing in the war ;
and have made them the victims of their vengeance,
when they have been anxious to assume a neutral posi-
tion. The exercise of this prerogative of acknowledg-
ing new nations, or ministers, is, therefore, under such
circumstances, an executive function of great delicacy,
which requires the utmost caution and deliberation.
If the executive receives an ambassador, or other minis-
ter, as the representative of a new nation, or of a party in
a civil w^ar in an old nation, it is an acknowledgment
of the sovereign authority de facto of such new nation,
or party. If such recognition is made, it is conclusive
upon the nation, unless indeed it can be reversed by an
act of congress repudiating it. If, on the other hand,
such recognition has been refused by the executive, it
is said, that congress may, notwithstanding, solemnly
1 1 Kent's Comm. Lect. Q, p. 39 ; Rawle on Const, ch. 20, p. 19o ;
Gtlston V. Hoyt, 3 Wheat. R. 3-24 ; United States v. Pahner, 3 Wheat.
R. 630; Serg. on Const, ch. 28, p. 324,325, (2cl edit. ch. 30, p. 336,
337, 338.
CH. XXXVII.] EXECUTIVE POWERS. 417
acknowledge the sovereignty of the nation, or party .^
These, however, are propositions, which have hitherto
remained, as abstract statements, under the constitution ;
and, therefore, can be propounded, not as absolutely true,
but as still open to discussion, if they should ever arise
in the course of our foreign diplomacy. The constitu-
tion has expressly invested the executive with power
to receive ambassadors, and other ministers. It has not
expressly invested congress with the power, either to re-
pudiate, or acknowledge them.^ At all events, in the
case of a revolution, or dismemberment of a nation, the
judiciary cannot take notice of any new government,
or sovereignty, until it has been duly recognised by
some other department of the government, to whom the
power is constitutionally confided.^
§ 1561. That a power, so extensive in its reach
over our foreign relations, could not be properly con-
ferred on any other, than the executive department,
will admit of Htde doubt. That it should be exclu-
sively confided to that department, without any parti-
cipation of the senate in the functions, (that body being
conjointly entrusted with the treaty-making power,) is
1 Rawle on Constitution, cli. 20, p. 195, 19G.
2 It is surprising, that the Federalist should have treated the power of
receiving ambassadors and other public ministers, as an executive func-
tion of little intrinsic importance. Its language is, " This, though it has
been a rich theme of declamation, is more a matter of dignity, than of
authority. It is a circumstance, which will be without consequence in
the administration of the government. And it was far more conven-
ient, that it should be arranged in this manner, than that there should
be a necessity of convening the legislature, or one of its branches,
upon every arrival of a foreign minister, though it were merely to take
the place of a departed predecessor." The Federalist, No. 69.
3 United States v. Palmer, 3 Wheat. R. 610, 634, 643 ; Hoyt v. Gels-
ton, 3 Wheat. R. 246, 323, 324 ; Rose v. MmeZ^, 4 €ranch, 441 ; The
Divina Pastora, 4 Wheat. R. 52, and note 65 ; The Neustra Senora de
la Caridad, 4 Wheat. R. 497.
VOL. III. 53
418 CONSTITUTION OF THE U. STATES. [bOOK III.
not so obvious. Probably the circumstance, that in all
foreign governments^ the power was exclusively con-
fided to the executive department, and the utter im-
practicability of keeping the senate constantly in ses-
sion, and the suddenness of the emergencies, which
might require the action of the government, conduced
to the estabhshment of the authority in its present
form.^ It is not, indeed, a power likely to be abused ;
though it is pregnant with consequences, often involv-
ing the question of peace and war. And, in our own
short experience, the revolutions in France, and the
revolutions in South America, have already placed us
in situations, to feel its critical character, and the ne-
cessity of having, at the head of the government, an
executive of sober judgment, enlightened views, and
, firm and exalted patriotism.^
§ 1562. As incidents to the power to receive am-
bassadors and foreign ministers, the president is under-
stood to possess the power to refuse them, and to dismiss
those who, having been received, become obnoxious
to censure, or unfit to be allowed the privilege, by their
improper conduct, or by political events.^ While, how-
ever, they are permitted to remain, as public functiona-
ries, they are entitled to all the immunities and rights,
w^hich the law of nadons has provided at once for their
dignity, their independence, and their inviolability.-^
^ 1563. There are other incidental powers, belong-
ing to the execuUve department, which are necessarily
implied from the nature of the functions, which are
1 See I Black. Comm. 253. 2 The Federalist, No. 69.
3 See 5 Marshall's Life of Washirifrton, ch. G, p. 398, 399, 404, 405,
41 1, 41-2 ; 1 Tuck Black. Comm. App. 341.
^ See 5 Marshall's Life of Washington, ch. 6, p. 443, 444 ; 7 Wait's
State. Papers, 282, 283, 302.
5 1 Kent's Comm. Lect. 2, p. 37, 38, 39.
CH. XXXVII.] EXECUTIVE- INCIDENTAL POWERS. 419
confided to it. Among these, must necessarily be in-
cluded the power to perform ihem, without any ob-
struction or impediment whatsoever. The president
cannot, therefore, be liable to arrest, imprisonment, or
detention, while he is in the discharge of the duties of
his office ; and for this purpose his person must be
deemed, in civil cases at least, to possess an official
inviolability. In the exercise of his political powers
he is to use his own discretion, and is accountable only
to his country, and to his own conscience. His de-
cision, in relation to these powers, is subject to no
control ; and his discretion, when exercised, is conclu-
sive. But he has no authority to control other officers
of the government, in relation to the duties imposed
upon them by law, in cases not touching his political
powers.^
^ 1564. In the year 1793, president Washington
thought it his duty to issue a proclamation, forbidding
the citizens of the United States to take any part in
the hostiUties, then existing between Great Britain and
France ; warning them against carrying goods, contra-
band of war; and enjoining upon them an entire absti-
nence from all acts, inconsistent with the duties of neu-
trality.^ This proclamation had the unanimous appro-
bation of his cabinet.^ Being, however, at variance
with the popular passions and prejudices of the day,
this exercise of incidental authority was assailed with
uncommon vehemence, and was denied to be constitu-
tional. It seems wholly unnecessary now to review
1 Marhury v. Madison, 1 Cranch. 137, S. C. ; 2 Peters's Cond. R. 27G,
277.
2 1 Wait's American State Papers, 44.
3 5 Marshall's Life of Washington, ch. 6, p. 404, 408.
420 CONSTITUTION OF THE U. STATES. [bOOK III.
the grounds of the controversy, smce the deliberate
sense of the nation has gone along with the exercise of
the power, as one properly belonging to the executive
duties.^ If the President is bound to see to the exe-
cution of the laws, and treaties of the United States ;
and if the duties of neutrality, w^hen the nation has not
assumed a belligerent attitude, are by the law^ of na-
tions obligatory upon it, it seems difficult to perceive
any solid objection to a proclamation, stating the facts,
and admonishing the citizens of their own duties and
responsibihties.^
^ 1565. We have seen, that by law^ the president
possesses the right to require the written advice and
opinions of his cabinet ministers, upon all questions
connected with their respective departments. But, he
does not possess a like authority, in regard to the judi-
cial department. That branch of the government can
be called upon only to decide controversies, brought
before them in a legal form ; and therefore are bound
to abstain from any extra-judicial opinions upon points
of law, even though solemnly requested by the exec-
utive.^
* Rawle on Const, ch. 20, p. 197. — The learned reader, who wishes
to review the whole ground, will find it treated in a masterly manner,
in the letters of Pacificus, written by Mr. Hamilton in favour of the
power, and in the letters of Helvidius, written by Mr. Madison against it.
They will both be found in the edition of the Federalist, printed at
Washington, in 1818, and in Hallowell, in 1826, in the Appendix.
2 J Tucker's Black. Comm. App. 846. — Both houses of Congress, in
their answers to the President's speech at the ensuing session, approved
of his conduct, in issuing the proclamation. — 1 Tucker's Black. Comm.
App. 34(;.
3 .5 Marshall's Life of Washington, ch. 6, p. 4:33, 441 ; Scrg. Const,
ch. 29, [ch. 31.] See also Ilayburn's case, 2 Dall. R. 409, 410, and note ;
Marbury V. Madison, 1 Crunch. 137, 171. — President Washington, in
1793, requested the opinion of the Judges of the Supreme Court, upon
the construction of the treaty with France, of 1778; but they declined
CH. xxxvil] executive-incidental powers. 421
§ 156G. The remciining section of llie fourth article,
declaring that the President, Vice-President, and all
civil oflicers of the United States shall be liable to
impeachment, has been already fully considered in an-
other place. And thus is closed the examination of the
rights, powers, and duties of the executive department.
Unless my judgment has been unduly biassed, I think
it will be found impossible to hold from this part of the
constitution a tribute of profound respect, if not of the
hveliest admiration. All, that seems desirable in or-
der to gratify the hopes, secure the reverence, and
sustain the dignity of the nation, is, that it should
always be occupied by a man of elevated talents, of ripe
virtues, of incorruptible integrity, and of tried patriot-
ism ; one, who shall forget his own interests, and re-
member, that he represents not a party, but the whole
nation ; one, whose fame may be rested with posterity,
not upon the false eulogies of favourites, but upon the
solid merit of having preserved the glory, and enhanc-
ed the prosperity of the country.^
to give any opinion, upon the ground stated in the text. 5 Marshall's
Life of Washington, ch. G, p. 433,441.
1 In consequence of President Jackson's Message, negativing the
Bank of the United States, July 10, 1832, in which he advances the
doctrine, that the decisions made by other departments of the govern-
ment, including the Judiciary, and even by his predecessors in office in
approving laws, are not obligatory on him ; the question has been a good
deal agitated by statesmen and constitutional lawyers. The following
extract from a letter, written by Mr. Madison to Mr. C. J. IngersoU, on
25th of June, 1831, contains reasoning on this subject, wortliy of liie
judgment of that groat iran.
" The charge of inconsistency between my objection to the consti-
tutionality of such a bank, in 1791, and my assent, in 1817, turns to the
question how far legislative precedents, expounding the constitution,
ought to guide succeeding legislatures, and to overrule individual opin-
ions.
"Some obscurity has been thrown over the question, by confounding
422 CONSTITUTION OF THE U. STATES. [bOOK III
it with the respect due from one legislature, to laws passed by preced-
ing legislatures. But the two cases are essentially different. A con-
stitution, being derived from a superior authority, is to be expounded
and obeyed, not controlled or varied by the subordinate authority of a
legislature. A law, on the other hand, resting on no higher authority,
than that possessed by every successive legislature ; its expediency, as
well as its meaning, is within the scope of the latter.
" The case in question has its true analogy, in the obligation arising
from judicial expositions of the law on succeeding judges, the'constitu-
tion being a law to the legislator, as the law is a rule of decision to the
judge.
" And why are judicial precedents, when formed on due discussion
and consideration, and deliberately sanctioned by reviews and repeti-
tions, regarded as of binding influence, or rather of authoritative force,
in settling the nv-'aning of a law ? It must be answered, 1st, because
it is a reasonable and established axiom, and the good of society re-
quires, that the rules of conduct of its members, should be certain and
known, which would not be the case if any judge, disregarding the
decisions of his predecessors, should vary the rule of law, according to
his individual interpretation of it. — Misera est servitus ubi jus aut vagura
aut incognitum. 2d, because an exposition of the law publicly made, and
repeatedly confirmed by the constituted authority, carries with it, by fair
inference, the sanction of those, who, having made the law through
their legislative organ, appear under such circumstances, to have de-
termined its meaning through their judiciary organ.
"Can it be of less consequence, that the meaning of a constitution
should be fixed and known, than that the meaning of a law should be
so? Can, indeed, a law be fixed in its meaning and operation, unless
the constitution be so? On the contrary, if a particular legislature,
differing in the construction of the constitution, from a series of pre-
ceding constructions, proceed to act on that difference, they not only
introduce uncertainty and instability in the constitution, but in the laws
themselves ; inasmuch as all laws, preceding the new construction, and
inconsistent with it, are not only annulled for the future, but virtually
pronounced nullities from the beginning.
"But, it is said, that the legislator, having sworn to support the con-
stitution, must support it in his own construction of it, however differ-
ent from that put on by his predecessors, or whatever be the conse-
quences of the construction. And is not the judge under the same
oath to support the law ? yet, has it ever been supposed, that he was
required, or at liberty, to disregard all precedents, however solemnly
repeated and regularly observed ; and by giving effect to his own ab-
stract and individual opinions, to disturb the established course of prac-
tice, in the business of the community ? Has the wisest and most con-
scientious judge ever scrupled to acquiesce in decisions, in which he
CH. XXXVII.] EXECUTIVE POWERS. 423
has been overruled by the matured opinions of the majority of his col-
leagues ; and subsequently to conform himself thereto, as to authorita-
tive expositions of the law? And is it not reasonable, that the same
view of the official oath should be taken by a legislator, acting under
the constitution, which is his guide, as is taken by a judge, acting under
the law, which is his ?
"There is, in fact and in common understanding, a necessity of re-
garding a course of practice, as above characterized, in the light of
a legal rule of interpreting a law : and there is a like necessity of con-
sidering it a constitutional rule of interpreting a constitution.
"That there may be extraordinary and peculiar circumstances con-
trolling the rule in both cases, may be admitted ; but with such excep-
tions, the rule will force itself on the practical judgment of the most
ardent theorist. He will find it impossible to adhere to, and act official-
ly upon his solitary opinions, as to the meaning of the law or constitu-
tion, in opposition to a construction reduced to practice, during a rea-
sonable period of time ; more especially, where no prospect existed of
a change of construction, by the public or its agents. And if a reason-
able period of time, marked with the usual sanctions, would not bar the
individual prerogative, there could be no limitation to its exercise,
although the danger of error must increase with the increasing oblivion
of explanatory circumstances, and with the continual changes in the
import of words and phrases.
"Let it then be left to the decision of every intelligent and candid
judge, which, on the whole, is most to be relied on for the true and safe
construction of a constitution ; that which has the uniform sanction of
successive legislative bodies through a period of years, and under the
varied ascendancy of parties; or that which depends upon the opinions of
every new legishiture, iieated as it may be by the spirit of party, eager
in the pursuit of some favourite object, or led astray by the eloquence
and address of popular statesmen, themselves, perhaps, under the in-
fluence of the same misleading causes.
" It was in conformity with the view here taken, of tlie respect due
to deliberate and reiterated precedents, that the bank of the United
Estates, though on the original question held to be unconstitutional, re-
ceived the executive signature in the year 1817. Tiie act originally
establishing a bank, had undergone ample discussions in its passage
through the several branches of the government. It had been carried
into execution throughout a period of twenty years, with annual legis-
lative recognitions ; in one instance, indeed, with a positive ramification
of it into a new state ; and with the entire acquiescence of all the local
authorities, as well as of the nation at large ; to all of which may be
added, a decreasing prospect of any change in the public opinion, ad-
verse to the constitutionality of such an institution. A veto from the
executive under these circumstances, with an admission of the expe-
diency and almost necessity of the measure, would have been a
424 CONSTITUTION OF THE U. STATES. [bOOK III.
defiance of all the obligations derived from a course of precedents,
amounting to the requisite evidence of the national judgment and in-
tention.
" It has been contended that the authority of precedents was in that
case invalidated, by the consideration, that they proved only a respect
for the stipulated duration of the bank, with a toleration of it, until the
law should expire, and by the casting vote given in the senate by the
Vice-President, in J 811, against a bill for establishing a National Bank,
the vote being expressly given on the ground of unconstitutionality.
But if the law itself was unconstitutional, the stipulation was void, and
could not be constitutionally fulfilled or tolerated. And as to the ne-
gative of the senate, by the casting vote of the presiding officer ; it is a
fact well understood at the time, that it resulted not from an equality of
opinions in that assembly, on the power of congress to establish a bank,
but from a junction of those, who admitted the power, but disapproved
the plan, with those who denied the power. On a simple question of
constitutionality, there was a decided majority in favour of it."
There is also a very cogent argument, on the same side, in Mr. Web-
ster's Speech in the senate, in July, 18o2, on the Veto Message of the
President.
CH. XXXVIIl.] JUDICIARY IMPORTANCE OF. 425
CHAPTER XXXVIIL
JUDICIARY ORGANIZATION AND POWERS.
^ 1567. The order of the subject next conducts us
to the consideration of the third article of the constitu-
tion, which embraces the organization and powers of
the judicial department.
§ 1568. The importance of the establishment of a
judicial department in the national government has
been already incidentallj^ discussed under other heads.
The want of it constituted one of the vital defects of
the confederation.^ And every government must, in its
essence, be unsafe and unfit for a free people, where
such a department does not exist, with powers co-ex-
tensive with those of the legislative department.^ Where
there is no judicial department to interpret, pronounce,
and execute the law, to decide controversies, and to
enforce rights, the government must either perish by its
own imbecility, or the other departments of govern-
ment must usurp powers, for the purpose of command-
ing obedience, to the destruction of liberty.^ The will
1 The Federalist, No. 22 ; Cohens v. Virginia, 6 Wheat. R. 3S8 ; 1
Kent's Comm. Lect. J 4, p. 277.
2 The Federalist, No. 80 ; 1 Kent's Comm. Lect. 14, p. 277 ; Cohens
V. Virginia, G Wheat. R. 384 ; 2 Wilson's Law Lect. ch. 3, p. 201 ;
3 Elliot's Deb. 143; Osborne v. Bank of United States, 9 Wheat. R.
8J8, 819. — Mr. Justice Wilson has traced out, with much minuteness of
detail, the nature and character of the judicial department in ancient, as
well as modern nations, and especially in England ; and a perusal of his
remarks will be found full of instruction. 2 Wilson's Law Lect. ch. 3,
p. 201,&c.
a 1 Kent's Comm. Lect. 14, p. 277. — It has been finely remarked by
Mr. Chief Justice Marshall, that " the judicial department has no will in
any case. Judicial power, as contradistinguished from the power of
VOL. III. 54
426 CONSTITUTION OF THE U. STATES. [BOOK III.
of those, who govern, v»ill become, under such circum -
stances, absolute and despotic ; and it is wholly imma-
terial, whether power is vested in a single tyrant, or in an
assembly of tyrants. No remark is better founded in
human experience, than that of Montesquieu, that "there
is no liberty, if the judiciary power be not separated from
the legislative and executive powers." ^ And it is no
less true, that personal security and private property
rest entirely upon the wisdom, the stability, and the
integrity of the courts of justice.^ If that government
can be truly said to be despotic and intolerable, in
w^hich the law is vague and uncertain ; it cannot but be
rendered still more oppressive and more mischievous,
when the actual administration of justice is dependent
upon caprice, or favour, upon the will of rulers, or the
influence of popularity. When power becomes right,
it is of httle consequence, whether decisions rest upon
corruption, or weakness, upon the accidents of chance,
or upon deliberate wrong. In every well organized
government, therefore, with reference to the security
both of public rights and private rights, it is indispen-
sable, that there should be a judicial department to
ascertain, and decide rights, to punish crimes, to admin-
ister justice, and to protect the innocent from injury
and usurpation.^
the laws, has no existence. Courts are the mere instruments of the
law, and can will nothing. When they are said to exercise a discretion,
it is a mere legal discretion, a discretion to be exercised in discernin*^
the course prescribed by law ; and, when that is discerned, it is the duty
of the court to follow it. Judicial power is never exercised for the pur-
pose of giving effect to tlie will of the judge ; but always for the purpose
of giving effect to the will of the legislature ; or, in other words, to the
will of the law."* '
1 Montesquieu's Spirit of Laws, B. 11, ch. 6.
3 1 Kent's Comm. Lcct. 14, p. 273.
3 Rawle on Constitution, ch. 21, p. 199.
* Osborne v. Bank of United States, 9 Wlieat. R. 8CG.
CH. XXXVIII.] JUDICIARY IMPORTANCE OF. 427
^ 1569. In the national government the power is
equally as important, as in the state governments. The
laws and treaties, and even the constitution, of the
United States, would become a dead letter without it.
Indeed, in a complicated government, like ours, where
there is an assemblage of republics, combined under a
common head, the necessity of some controlHng judi-
cial power, to ascertain and enforce the powers of the
Union, is, if possible, still more striking. The lav* s of
the whole vv^ould otherwise be in continual danger of
being contravened by the laws of the parts.^' The na-
tional government would be reduced to a servile de-
pendence upon the states ; and the same scenes would
be again acted over in solemn mockery, which began
in the neglect, and ended in the ruin, of the confedera-
tion.^^ Power, without adequate means to enforce it, is
like a body in a state of suspended animation. For all
practical purposes it is, as if its faculties were extin-
guished. Even if there were no danger of collision be-
tween the laws and powers of the Union, and those of
the Slates, it is utterly impossible, that, without some su-
perintending judiciary establishment, there could be any
uniform administration, or interpretation of them. The
idea of uniformity of decision by thirteen independent
and co-ordinate tribunals(and the number is now advanc-
ed to twenty-four) is absolutely visionary, if not absurd.
The consequence would necessarily be, that neither
the constitution, nor the laAvs, neither the rights and
powers of the Union, nor those of the states, would be
the same in any two states. And tl^ere would be per-
1 The Federalist, No. 22; Chisholm v. Georgia, 2 L'all. 410,474;
ante, Vol. i. p. 246, 247 ; Jl Elliot's Deb. 142.
2 See Coheirs v. Virginia, (3 Wheat. R. 384 to 390; Id. 402 to 404,
415; Osborne V. Bank of United States, d\YhQ-di. K. 818, 819; ante,
Vol. I. § 2G(3, 2G7.
428 CONSTITUTION OF THE U. STATES. [bOOK 111.
petual fluctuations and changes, growing out of the di-
versity of judgment, as well as of local institutions,
interests, and habits of thought/
§ 1570. Tw^o ends, then, of paramount importance,
and fundamental to a free government, are proposed to
be attained by the establishment of a national judiciary.
The first is a due execution of the powers of the gov-
ernment ; 'and the second is a uniformity in the inter-
pretation and operation of those powers, and of the
laws enacted in pursuance of them.. The power of in-
terpreting the laws involves necessarily the function to
ascertain, whether they are conformable to the constitu-
tion, or not ; and if not so conformable, to declare them
void and inoperative. As the constitution is the su-
preme law of the land, in a conflict betw een that and
the laws, either of congress, or of the states, it becomes
the duty of the judiciary to follow^ that only, which is
of paramount obUgation. This results from the very
theory of a republican constitution of government ; for
otherwise the acts of the legislature and executive
would in effect become supreme and uncontrollable,
notwithstanding any prohibitions or limitations contain-
ed in the constitution ; and usurpations of the most un-
equivocal and dangerous character might be assumed,
without any remedy within the reach of the citizens.^
The people would thus be at the mercy of their rulers,
1 Martin V. Hunter, 1 Wheat. R. 304, 345 to 349 ; Tlie Federalist,
No. 22,
2 The Federalist, No. 78, 80, 81,82; 1 Tuck. Black. Coinm. App.
355 to 360 ; 3 Elliot's Deb. 134.— This subject is very elaborately dis-
cussed in the Federalist, No. 78, from which the following extract is
made :
" The complete independence of the courts of justice is peculiarly es-
sential in a limited constitution. By a liaJted constitution, I understand
one, which contains certain specified exceptions to the legislative au-
thority ; such, for instance, as that it shall pass no bills of attainder, no
CH. XXXVIII.] JUDICIARY IMPORTANCE OF. 429
in the state and national governments ; and an omni-
potence would practically exist, like that claimed for the
Bridsh Parliament. The universal sense of America
ex post facto laws, and the like. Limitations of this kind can be pre-
served in practice no other way than through the medium of the courts
of justice; whose duty it must be to declare all acts contrary to the
manifest tenor of the constitution void. Without this, all the reserva-
tions of particular rights or privileges would amount to nothing.
" Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the constitution, has arisen
from an imagination, that the doctrine would imply a superiority of the
judiciary to the legislative power. It is urged, that the authority, which
can declare the acts of another void, must necessarily be superior to the
one. whose acts maybe declared void. As this doctrine is of great im-
portance in all the American constitutions, a brief discussion of the
grounds, on which it rests, cannot be unacceptable.
"There is no position, which depends on clearer principles, than that
every act of a delegated authority, contrary to the tenor of the commis-
sion, under which it is exercised, is void. No legislative act, therefore,
contrary to the constitution, can he valid. To deny this, would be to
affirm, that the deputy is greater than his principal ; that the servant is
above his master ; that the representatives of the people are superior to
the people themselves; that men, acting by virtue of powers, may do,
not only what their powers do not authorize, but what they forbid.
"If it be said, that the legislative body are themselves the constitu-
tional judges of their own powers, and that the construction they put
upon them is conclusive upon the other departments, it may be answer-
ed, that this cannot be the natural presumption, where it is not to be
collected from any particular provisions in the constitution. It is not
otherwise to be supposed, that the constitution could intend to enable
the representatives of the people to substitute their ivill to that of their
constituents. It is far more rational to suppose, that the courts were
designed to be an intermediate body between the people and the legis-
lature, in order, among other things, to keep the latter within the limits
assigned to their authority. The interpretation of the lav.'s is the proper
and peculiar province of the courts. A constitution is, in fact, and
must be regarded by the judges as a fundamental law. It must, there-
fore, belong to them to ascertain its meaning, as well as the meanino-of
any particular act proceeding from the legislative body. If there should
happen to be an irreconcilable variance between the two, tliat which
has the superior obligation and validity ought, of course, to be preferred :
in other words, the constitution ought to be preferred to the statute •
the intention of the people to the intention of their agents.
" Nor does the conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes, that the power of
430 CONSTITUTION OF THE U. STATES. [bOOK III.
has decided, that in the last resort the judiciary must
decide upon the constitutionality of the acts and laws
of the general and state governments, so far as they are
the people is superior to both; and that where the will of the legislature
declared in its statutes, stands in opposition to that of the people declar-
ed in the constitution, the judges ought to be governed by the latter
rather than the former. They ought to regulate their decisions by the
fundamental laws, rather than by those, which are not fundamental.
'' This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not uncom-
monly happens, that there are two statutes existing atone time, clashing
in whole or in part with each other, and neither of them containing any
repealing clause or expression. In such a case, it is the province of the
courts to liquidate and fix their meaning and operation : so far as they
can, by any fair construction, be reconciled to each other, reason and
law conspire to dictate, that this should be done : where this is imprac-
ticable, it becomes a matter of necessity to give effect to one, in exclu
sion of the other. The rule, which has obtained in the courts for deter-
mining their relative validity is, that the last in order of time shall be
preferred to the first. But this is a mere rule of construction, not de-
rived from any positive law, but from the nature and reason of the thing.
It is a rule not enjoined upon the courts by legislative provision, but
adopted by themselves, as consonant to truth and propriety, for the di-
rection of their conduct as interpreters of the law. They thought it
reasonable, that between the interfering acts of an equal authority, that
which was the last indication of its will, should have the preference.
" But in regard to the interfering acts of a superior and subordinate
authority, of an original and derivative power, the nature and reason of
the thing indicate the converse of that rule as proper to be followed.
They teach us, that the prior act of a superior ought to be preferred to
the subsequent act of an inferior and subordinate authority ; and that
accordingly, whenever a particular statute contravenes the constitution,
it will be tie duty of the judicial tribunals to adhere to the latter, and
disregard the former.
" It can be of no weight to say, that the courts, on the pretence of a
repugnancy, may substitute their own pleasure to the constitutional
intentions of tlie legislature. This might as well happen in the case of
two contradictory statutes ; or it might as well happen in every adjudi-
cation upon any single statute. The courts must declare the sense of
the law; and if they should be disposed to exercise will mstend of judg-
ment, the consequence would equally be the substitution of their pleasure
to that of the legislative body. The observation, if it proved any thing,
would prove, that there ought to be no judges distinct from that body."
The reasoning of Mr. Chief Justice Marshall on this subject in Cohens
CH. XXXVIII.] JUDICIARY IMPORTANCE OF. 431
capable of being made the subject of judicial controver-
sy.^ It follows, that, when they are subjected to the
cognizance of the judiciary, its judgments must be con-
clusive ; for otherwise they may be disregarded, and the
acts of the legislature and executive enjoy a secure and
V. Virginia, (6 Wheat. R. 334 to 390,) has been already cited at large,
ante Vol. i. p. 3G9 to 372. See also 6 Wheat. R. 413 to 423, and the
Federalist, No. 22, on the same subject.
1 1 Kent's Coram. Lect. 20, p. 420 to 426. See also Cohens v. Vir-
ginia, 6 Wheat. R. 386 to 390. — The reasoning of the Supreme Court
in Marhury v. Madison, (1 Cranch, 137,) on this subject is so clear and
convincing, that it is deemed advisable to cite it in this place, as a cor-
rective to those loose and extraordinary doctrines, which sometimes find
their way into opinions possessing official influence.
"The question, whether an act, repugnant to the constitution, can be-
come the law of the land, is a question deeply interesting to the United
States ; but, happily, not of an intricacy proportioned to its interest. It
seems only necessary to recognise certain principles, supposed to have
been long and well established, to decide it. That the people have an
original right to establish, for their future government, such principles
as, in their opinion, shall most conduce to their own happiness, is the
basis, on which the whole American fabric has been erected. The ex-
ercise of this original right is a very great exertion ; nor can it, nor
ought it to be frequently repeated. The principles, therefore, so estab-
lished, are deemed fundamental. And as the authority, from which
they proceed, is supremo, and can seldom act, they are designed to be
permanent. This original and supreme will organises the government,
and assigns to different departments their respective powers. It may
either stop here, or establish certain limits, not to be transcended by
those departments.
"The government of the United States is of the latter description.
The powers of the legislature are defined, and limited ; and that those
limits may not be mistaken, or forgotten, the coastitution is written. To
what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by
those intended to be restrained ? The distinrtion, between a govern-
ment with limited and unlimited powers, is abolished, if those limits do
not confine the persons, on whom they are imposed, and if acts prohibit-
ed, and acts allowed, are of equal obligation. It is a proposition too
plain to be contested, th.it the constitution controls tny legislative act
repugnant to it ; or, that the legislature may alter the constitution by an
ordinary act. Between these alternatives there is no middle ground.
The constitution is either a superior, paramount law, unchangeable by
432 CONSTITUTION OF THE U. STATES. [bOOK III.
irresistible triumph.^ To the people at large, therefore,
such an institution is peculiarly valuable ; and it ought to
be eminently cherished by them. On its firm and inde-
ordinary means, or it is on a level wi4i ordinary legislative acts, and, like
other acts, is alterable, when the legislature shall please to alter it. If
the former part of the alternative be true, then a legislative act contra-
ry to the constitution is not law ; if the latter part be true, then written
constitutions are absurd attempts, on the part of the people, to limit a
power, in its own nature illimitable.
" Certainly all those, who have framed written constitutions, contem-
plate them as forming the fundamental and paramount law of the nation,
and consequently the'theory of every such government must be, that an
act of the legislature, repugnant to the constitution, is void. This
theory is essentially attached to a written constitution, and is conse-
quently to be considered by this court, as one of the fundamental prin-
ciples of our society. It is not, therefore, to be lost sight of in the fur-
ther consideration of this subject. If an act of the legislature, repug-
nant to the constitution, is void, does it, notwithstanding its invalidity,
bind the courts, and oblige them to give it effect ? Or, in other words,
though it be not law, does it constitute a rule as operative, as if it was a
law ? This would be to overthrow in fact, what was established in theo-
ry ; and would seem, at first view, an absurdity too gross to be insisted
on.' It shall, however, receive a more attentive consideration.
"It is emphatically the province and duty of the judicial department
to say, what the law is. Those, who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation of each. So if
a law be in opposition to the constitution ; if both the law and the con-
stitution apply to a particular case ; so that the court must either decide
that case conformably to the law, disregarding the constitution; or con-
formably to the constitution, disregarding the laAv : tiie court must de-
termine, which of these conflicting rules governs the case. This is of
the very essence of judicial duty. If, then, the courts are to regard the
constitution ; and the constitution is superior to any ordinary act of the
legislature ; the constitution, and not such ordinary act, must govern the
case, to which they both apply.
"Those, then, who controvert the principle, that the constitution is to
be considered, in courts, as a paramount law, are reduced to the neces-
sity of maintaining, that courts must close their eyes on the constitution
and see only the law. This doctrine would subvert the very foundation
1 I Kent's Comm. Lect. 20, p. 4'i() to 420. See also I Tuck. Black.
Comm. App. 3.54 to 357 : The Federalist, No. 3, 22, 80, 82 j 2 Elliot's
Deb. 380.
CH. :^XXVIII.] JUDICIARY IMPORTANCE OF. 433
pendent structure they may repose with safety, while
they perceive in it a faculty, which is only set in mo-
tion, when applied to ; but which, when thus brought
of all written constitutions. It would declare, that an act, which, ac-
cording- to the principles and theory of our government, is entirely void,
is yet, in practice, completely obligatory. It would declare, that if the
legislature shall do, what is expressly forbidden, such act, notwithstand-
ing the express prohibition, is in rQality effectual. It Avould be giving
to the legislature a practical and real omnipotence, with the same breath,
which professes to restrict their powers within narrow limits. It is pre-
scribing limits, and declaring, that tiiose limits may be passed at pleas-
ure. That it thus reduces to nothing, what we have deemed the great-
est improvement on political institutions — a written constitution —
would of itself be sufficient, in America, where written constitutions
have been viewed with so much reverence, for rejecting the construc-
tion. Rut the peculiar expressions of the constitution of the United
States furnish additional arguments in favour of its rejection.
"The judicial power of the United States is extended to all cases,
arising under the constitution. Could it be the intention of those, who
gave this power, to say, that, in using it, the constitution should not be
looked into ? That a case arising under the constitution should be
decided without examining the instrument, under which it arises.'' This
is too extravagant to be maintained. In some cases, then, the consti-
tution must be looked into by the judges. And if they can open it at
all, what part of it are they forbidden to read, or to -obey ?
" There are many other parts of the constitution, which serve to illus-
trate this sui)ject. It is declared, that ' no tax or duty shall be laid on
articles exported from any state.' Suppose a duty on the export of
cotton, of tobacco, or of jflour ; and a suit instituted to recover it. Ought
judgment to be rendered in such a case ? ought the judges to close their
eyes on the constitution, and only see the law ? The constitution de-
clares, that ' no bill of attainder or ex post factoXdiM shoW be passed.' If,
however, such a bill should be passed, and a person should be prosecut-
ed under it ; must the court condemn to death those victims, whom the
constitution endeavours to preserve .-' ' No person,' says the constitu-
tion, ' shall be convicted of treason unless on the testimony of two wit-
nesses to the same overt act, or on confession in open court.' Here the
language of the constitution is addressed especially to the courts. It
prescribes, directly for them, a rule of evidence not to be departed from.
If the legislature should change that rule, and declare one witness, or a
confession out of court, sufficient for conviction, must the constitutional
principle yield to the legislative act ?
'' From these, and many other selectious, which might be made, it is
apparent, that the framers of the constitution contemplated that instru-
voL. III. 55
434 CONSTITUTION^ OF THE U. STATES. [bOOK III.
into action, must proceed with competent power, if
required to correct the error, or subdue the oppression
of the other branches of the government.^ Fortunately
ment, as a rule for the g-overnment of courts, as well as of the legisla-
ture. Why otherwise does it direct the judges to take an oath to sup-
port it? This oath certainly applies, in an especial manner, to their
conduct in their official character. How immoral to impose it on them,
if they Avere to be used as the instruments, and the knowing instruments
for violating what they swear to support ! The oath of office, too, im-
posed by the legislature, is completely demonstrative of the legislative
opinion on this subject. It is in these words, 'I do solemnly swear, that
I will administer justice Avithout respect to persons, and do equal right
to the poor and to tlie rich ; and that I will faithfully and impartiaily
discharge all the duties incumbent on me as according to
the best of my abilities and understanding, agreeably to the consliiution,
and laws of the United States.' Why does a judge swear to discharge
his duties agreeably to the constitution of the United States, if that con-
stitution forms no rule for his government? if it is closed upon him, and
cannot be inspected by him ? If such be the real state of things, this is
worse than solemn mockery. To prescribe, or to take this oath, be-
comes equally a crime.
" It is also not entirely unworthy of observation, that in declaring,
what shall be the supreme law of the land, the constitution itself is first
mentioned ; and not the laws of the United States generally, but those
only, which shall be made in pursuance of the constitution, have that
rank. Thus, the particular phraseology of the constitution of the Uni-
ted States confirms and strengthens the principle, supposed to be essen-
tial to all written constitutions, that a law repugnant to the constitution
is void ; and that courts, as avcII as other departments, are bound by
that instrument."
In the Virginia Convention, Mr. Patrick Henry (a most decided oppo-
nent of the Constitution of the United States) expressed a strong opin-
ion in favour of the right of the judiciary to decide upon the constitu-
tionality of laAvs. His fears were, that the national judiciary was not so
organized, as that it would possess an independence sufficient for this
purpose. Ilis language was : " The honourable gentleman did our ju-
diciary honour in saying, that they had firmness enough to counteract
the legislature in some cases. Yes, sir, our judges opposed the acts of
the legislature. We have this land-mark to guide us. They had forti-
tude to declare, that they were the judiciary, and would oppose uncon-
stitutional acts. Are you sure, that your federal judiciary will act thus ?
1 Rawle on Const, rh. 21, p. 199; Id. ch. 30, p. 27.5, 276; 1 Wilson's
Law Lect. 4(^0, 401 ; 3 Elliot's Deb. 143; Id. 245; Id. 280.
CH. XXXVIII.] JUDICIARY IMPORTANCK OF. 435
too for the people, the functions of the judiciary, in
deciding on constitutional questions, is not one, which it
is at liberty to decline. While it is bound not to take
jurisdiction, if it should not, it is equally true, that it
must take jurisdiction, if it should. It cannot, as the
legislature may, avoid a measure, because it approaches
the confines of the constitution. It cannot pass it by,
because it is doubtful. With whatever doubt, with
whatever difficulties a case may be attended, it must
decide it, when it arises in judgment. It has no more
right to decUne the exercise of a jurisdiction, which
is given, than to usurp that, which is not given. The
one, or the other would be treason to the constitu-
tion.^
§ 1571. The framers of the constitution, having these
great principles in view, adopted two fundamental rules
with entire unanimity ; first, that a national judiciary
ought to be estabUshed; secondly, that the national
judiciary ought to possess powers co-extensive with
Is that judiciary so well constituted, and so independent of the other
branches, as our slate judiciary ? Where are your land-marks in this
government ? I will be bold to say, you cannot find any. I take it, as
the highest encomium on this country, that the acts of the le<^isluture, if
unconstitutional, are liable to be opposed by the judiciary." 2 Elliot's
Debates, 248.
1 Coliens V. Virginia, 6 Wheat. R. 404 ; I Wilson's Law Lect. 4G1,
462. Mr. Justice Johnson, in Fullerton v. Bank of United States, (1 Pe-
ters's R. G04, 014,) says, "What is the course of prudence and duty,
where these cases of difficult distribution as to power and right present
themselves ? It is to yield rather, than to encroach. The duty is re-
ciprocal, and will no doubt be met in the spirit of moderation and comity.
In the conflicts of power and opinion, inseparable from our many peculiar
relations, cases may occur, in which the maintenance of principle and the
^constitution, according to its innate and inseparable attributes, may
require a different course ; and when such cases do occur, our courts
must do their duty." This is a very just admonition, when addressed to
other departments of the government. But the judiciary has no authori-
ty to adopt any middle course. It is compelled, when called upon, to
436 CONSTITUTION OF THE U. STATES. [bOOK HI.
those of the legislative department.^ Indeed, the latter
necessarily flowed from the former, and was treated,
and must always be treated, as an axiom of political
government.^ But these provisions alone would not
be sufficient to ensure a complete administration of
public justice, or to give permanency to the republic.
The judiciary must be so organized, as to carry into
complete effect all the purposes of its estabUshment.
It must possess wisdom, learning, integrity, indepen-
dence, and firmness. It must at once possess the
power and the means to check usurpation, and enforce
execution of its judgments. Mr. Burke has, v»ith sin-
gular sagacity and pregnant brevity, stated the doctrine,
which every republic should steadily sustain, and con-
scientiously inculcate. " Whatever," says he, " is su-
preme in a state ought to have, as much as possible, its
judicial authority so constituted, as not only not to de-
pend upon it, but in some sort to balance it. It ought
to give security to its justice against its power. It
ought to make its judicature, as it were, something
exterior to the state." ^ The best manner, in which this
is to be accomplished, must mainly depend upon the
mode of appointnient, the tenure of office, the com-
pensation of the judges, and the jurisdiction confided
to the department in its various branches.
§ 1572. Let us pi-oceed, then, to the consideration
of the judicial department, as it is established by the
decide, whether a law is constitutional, or not. If it declines to declare
it unconstitutional, that is an affirmance of its constitutionality.
1 Journ. of Convention, (;<>, US, 121, 1:37, 18(5, 188, ISO, 212 ; The Fed-
eralist, No. 77, 78 ; 2 Elliot's Dehates, 380 to 394 ; Id. 404.
2 Cohens V. Virghna, G Wheat. R. 384; 1 Tucker's Black. Comm.
App. 350; The Federalist, No. 80 ; 2 Elliot's Debates, 380,390,404;
3 Elliot's Debates, 134, 143 ; Osborn v. Bank of United Slates, 0 Wheat.
R. 818, 819; 1 Kent's Comm. Lcct. 14, p. 277.
3 Biirko's Rcnortioii-; on ih<' French Revolution.
CH. XXXVIII.] JUDICIARY ORGANIZATION. 437
constitution, and see, how far adequate means are pro-
vided for all these important purposes.
^ 1573. The first section of the third article is as
follows: "The judicial power of the United States
" shall be vested in one Supreme Court, and in such
"inferior courts, as the congress may from time to time
"ordain and establish. The judges, both of the su-
"preme and inferior courts, shall hold their offices dur-
" ins: aood behaviour : and shall at stated times receive
"for their services a compensation, which shall not be
" diminished during their continuance in office." To
this m.ay be added the clause in the enumeration of the
powers of congress in the first article, (which is but a
mere repetition,) that congress shall have power " to
constitute tribunals inferior to the Supreme Court." ^
1 It is manifest, that the constitution contemplated distinct appoint-
ments of the judges of the courts of the United States. The judges of the
Supreme Court are expressly required to be appointed by the president,
by and with the advice and consent of the senate. Tliey are, therefore,
expressly appointed for that court, and for that court only. Can they
be constitutionally required to act, as judges of any other court? This
question (it now appears) was presented to the minds of the judges of
the Supreme Court, who were first appointed under the constitution ;
and tiie chief justice (Mr. Jay) and some of his associates were of
opinion, (and so stated to President Washington, in 1790, in a letter,
which will be cited below at large.) that they could not constitutionally
be appointed to hold any other court. They were, however, required to
perform the duty of circuit judges in the circuit courts, until the year
1801 ; and then a new system was established. The latter was repeal-
ed in 1602 ; and the judges of the Supreme Court were again required
to perform duty in the circuit courts. In 1803, the point was directly
made before the Supreme Court ; but the court were then of opinion,
that the practice and acquiescence, for such a period of years, com-
mencing- with the organization of the judicial system, had fixed the con-
struction, and it could not then be shaken. Stuart v. Laird, [l Cranch's
R. 209, 309.) That there have, notwithstanding, been many scruples
and doubts upon the subject, in the minds of the judges of the Supremo
Court, since that period, is well known. See I Paine's Cirt. Rep.
We here insert the letter of Mr. Chief Justice Jay and his associates.
438 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1574. In the convention, which framed the consti-
tution, no diversity of opinion existed, as to the estab-
lishment of a supreme tribunal. The proposition
for which we are indebted to the editors ot that excellent work, the
American Jurist. It is in the number for October, 1830, (vol. 4, p. 294,
" The representation alluded to was in answer to a letter, addressed
by General Washington to the court upon its organization, which we
have therefore prefixed to it.
Uiiiled States, .^pril 3d, 1790.
" ' Gentlemen : I have always been persuaded, that the stability and
success of the national government, and consequently the happiness of
the people of the United States, would depend, in a considerable de-
gree, on the interpretation of its laws. In my opinion, therefore, it is
important, that the judiciary system should not only be independent in
its operations, but as perfect, as possible, in its formation.
" ' As you are about to commence your first circuit, and many things
may occur in such an unexplored field, which it would be useful should
be known, I think it proper to acquaint you, that it will be agreeable to
me to receive such information and remarks on this subject, as you shall
from time to time judge it expedient to make. Geo. Washington.
" ' The Chief Justice and Associate Justices
of the Supreme Court of tiie United States.'
" ' Sir : We, the Chief Justice and Associate Justices of the Supreme
Court of the United States, in pursuance of the letter, which you did
us the honour to write, on the third of April last, take the liberty of
submitting to your consideration the following remarks on the " Act to
establi:5h the Judicial Courts of the United States."
"'It would doubtless have been singular, if a system so new and un-
tried and which was necessarily formed more on principles of theory,
and probable expediency, than former experience, had, in practice, been
found entirely free from defects.
" ' The particular and continued attention, which our official duties
called upon us to pay to this act, has produced reflections, which at the
time it was made and passed, did not, probably, occur in their full extent
either to us or others.
" ' On comparing this act with the constitution, we perceive devia-
tions, which, in our opinions, are important.
"'The first section of tiie third article of the constitution declares,
that "the judicial power of the United States shall be vested in one
Supreme Court, and in such inferior courts, as the congress may, from
time to time, ordain and establish."
CH. XXXVIII.] JUDICIARY ORGANIZATION. 439
was unanimously adopted.^ In respect to the estab-
lishment of inierior tribiinals, some diversity of opinion
was in the early stages of the proceedings exhibited.
"'The second section enumerates the cases, to which the judicial
power shall extend. It gives to the Supreme Court original jurisdiction
in only two cases, but in all the others, vests it with appellate jurisdic-
tion ; and that with such exceptions, and under such regulations, as the
congress shall make.
" ' It has long and very universally heen deemed essential to the due
administration of justice, that some national court, or council should be
instituted, or authorized to examine the acts of the ordinary tribunals
and ultimately, to affirm or reverse their judgments and decrees : it be-
ing important, that these tribunals should be confined to the limits of
their respective jurisdiction, and that they should uniformly interpret
and apply the law in the same sense and manner.
"'The appellate jurisdiction of the Supreme Court enables it to con-
fine inferior courts to their proper limits, to correct their involuntary
errors, ;ind, in general, to provide, that justice be administered accu-
rately, impartially, and uniformly. These controlling powers were una-
voidably great and extensive ; and of such a nature, as to render their
being combined with other judicial powers, in the same persons, unad-
visable.
"'To the natural, as well as legal incompatibility of ultimale appel-
late jurisdiction, with original jurisdiction, we ascribe the exclusion of
the Supreme Court from the latter, except in two cases. Had it not
been for this exclusion, the unalterable, ever-binding decisions of this
important court, would not have been secured against the influences of
those predilections for individual opinions, and of those reluctances to
relinquish sentiments publicly, though, perhaps, too hastily given, which
insensibly and not unfrequently infuse into tlie minds of the most up-
right men, some degree of partiality for their official and public acts.
" ' Without such exclusion, no court, possessing the last resort of jus-
tice, would have acquired and preserved that public confidence, which
is really necessary to render the wisest institutions useful. A celebrat-
ed writer justly observes, that "next to doing right, the great object in
the administration of public justice should be to give public satisfac-
tion."
" ' Had the constitution permitted the Supreme Court to sit in judg-
ment, and finally to decide on the acts and errors, done and committed
by its own members, as judges of inferior and subordinat-- courts, much
room would have been left for men, on certain occasions, to suspect, that
J Journal of Convention, 69, 98, 137, 186.
440 COXSTITUTIOX OF THE U. STATES. [bOOK III.
A proposition to establish them was at first adopted.
This was struck out Idj the vote of five states against
four, two being divided ; and a proposition was then
an unwillinj^ness to be thought and found in the wrong, had produced
an improper adherence to it ; or that mutual interest had generated mu-
tual civilities and tendernesses injurious to right.
« < If room had been left for such suspicions, there would have been
reason to apprehend, that the public confidence would diminish almost
in proportion to the number of cases, in which the Supreme Court might
affirm the acts of any of its members.
'■ ' Ai)peals are seldom made, but in doubtful cases, and in which there
is at least, much appearance of reason on both sides; in such cases,
therefore, not only the losing party, but others, not nnmediately inter-
ested, would sometimes be led to doubt, whether the affirmance was
entirely owing to the mere preponderance of right.
" ' These, Vve presume, were among the reasons, which induced the
convention to confine tiie Supreme Court, and consequently its judges,
to apptdlate jurisdiction. We say "consequently its judges," because
the reasons for the one apply also to the other.
» ' We are aware of the distinction between a court and its judges ;
and are far from thinking it illegal or unconstitutional, however it may
be inexpedient, to euiploy them for other purposes, provided the latter
purposes be consistent and compatible with the former. But from this
distinction it cannot, in our opinions, be inferred, that the judges of the
Supreme Court may also bo judges of inferior and subordinate courts,
and be at the same time both tlie controllers and the controlled.
"'The apnlit-ation of these remarks is obvious. The Circuit Courts
established by the act are courts inferior and subordinate to the Su-
preme Court. They are vested with originrJ jurisdiction in the cases,
from which the Supreme Court is excluded ; and to us it would appear
verv sino-ular, if the constitution was capable of being so construed, as
to exclude the court, but yet admit tiie judges of the court. We, for
our parts, consider the constitution, as plainly opposed to the appoint-
ment of the same persons to both offices ; nor have we any doubts of
their legal incompatibility.
"' Bacon, in his Abridgment, says, that" offices are said to be incom-
patible and inconsistent, so as to be executed by one person, when from
the multiplicity of business in them, they cannot be executed with care
and ability ; or when their being subordinate, and interfering with each
other, it induces a presumption they cannot be executed with impartiality
and honesty ; and this, my Lord Coke says, is of that importance, that
if all offices, civil and ecclesiastical, &c. were only executed, each by
different persons, it would be for the good of the commonwealth and
CH. XXXVin.] JUDICIARY ORGANIZATION. 441
adopted, " that the national legislature be empowered
to appoint inferior tribunals," by the vote of seven states
against three, one being divided;^ and ultimately this
proposition received the unanimous approbation of the
convention.^
advancement of justice, and preferment of deservinj^ men. If a for-
ester, by patent for his life., is made justice in Eyre of the same forest,
hac vice, the forestership is become void; for these offices are incom-
patible, because the forester is under the correction of the justice in
Eyre, and he cannot judge himself. Upon a mandamus to restore one
to the place of town-clerk, it was returned, that he was elected mayor
and sworn, and, therefore, they chose another town-clerk ; and the court
were strong of opinion, that the offices were incompatible, because of
the subordination. A coroner, made a sheriff, ceases to be a coroner :
so a parson, made a bishop, and a judge of the Common Pleas, made a
judge of the King's Bench," &c.
*' ' Other authorities on this point might be added ; but the reasons,
on which they rest, seem to us to require little elucidation, or support.
**' There is in the act another deviation from the constitution, which
we think it incumbent on us to mention.
"'The second section of the second article of the constitution de-
clares, that the president shall nominate, and by and with the advice and
consent of the senate, "shall appoint judges of the Supreme Court, and
all other officers of the United States, whose appointments are not
therein otherwise provided for."
'"The constitution not having otherwise provided for the appoint-
ment of the judges of the inferior courts, we conceive, that the appoint-
ment of some of them, viz. of the Circuit Courts, by an act of the legis-
lature, is a departure from the constitution, and an exercise of powers,
which constitutionally and exclusively belong to the president and
senate.
" ' We should proceed, sir, to take notice of certain defects in the act
relative to expediency, which we think merit the consideration of the
congress. But, as these are doubtless among the objects of the late
reference, made by the houseof representatives to the attorney-general,
we think it most proper to forbear making any remarks on this subject
at present.
" ' We have the honour to be most respectfully,
" ' Sir, your obedient and humble servants.
" ' The President of the United States.' "
1 Journal of Convention, 69, 98, 99, 102, 137.
2 Id. 188, 212.
VOL. III. 56
442 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1575. To the establishment of one court of su-
preme and final jurisdiction, there do not seem to
have been any strenuous objections generally insisted
on in the state conventions, though many were urged
against certain portions of the jurisdiction, proposed by
the constitution to be vested in the courts of the United
States.^ The principal question seems to have been of
a different nature, whether it ought to be a distinct co-
ordinate department, or a branch of the legislature.
And here it was remarked by the Federalist, that the
same contradiction of opinion w^as observable among
the opponents of the constitution, as in many other
cases. Many of those, who objected to the senate, as
a court of impeachment, upon the ground of an im-
proper intermixture of legislative and judicial functions,
were, at least by implication, advocates for the propriety
of vesting the ultimate decision of all causes in the
w^hole, or in a part of the legislative body.^
§ 1576. The arguments, or rather suggestions, upon
which this scheme was propounded, were to the fol-
lowing effect. The authority of the Supreme Court
of the United States, as a separate and independent
body, will be superior to that of the legislature. The
power of construing the laws according to the spirit of
the consdtution will enable that court to mould them
into whatever shape, it may think proper ; especially,
as its decisions will not be in any manner subject to the
revision and correction of the legislative body. This
is as unprecedented, as it is dangerous. In Great
Britain the judicial power in the last resort resides in
the house of lords, which is a branch of the legislature.
And this part of the British government has been imi-
1 See 2 Elliot's Debates, 380 to 427.
a The Federalist, No. 81.
CH. XXXVIIl.] JUDICIARY ORGANIZATION. 443
tated in the state constitutions in general. The par-
hament of Great Britain, and the legislatures of the
several states, can at any time rectify by law the ex-
ceptionable decisions of their respective courts. But
the errors and usurpations of the Supreme Court of
the United States will be uncontrollable, and remedi-
less.^
^ 1577. The friends of the constitution, in answer
to these suggestions, repUed, that they were founded
in false reasoning, or a misconception of fact. In the
first place, there was nothing in the plan, which directly
empowered the national courts to construe the laws
according to the spirit of the constitution, or which
gave them any greater latitude in this respect, than
what was claimed and exercised by the state courts.
The constitution, indeed, ought to be the standard of
construction for the laws ; and wherever there was
an opposition, the laws ought to give place to the con-
stitution. But this doctrine was not deducible from
any circumstance peculiar to this part of the constitu-
tion, but from the general theory of a limited consti-
tution ; and, as far as it Avas true, it was equally ap-
plicable to the state governments.
^ 1578. So far as the objection went to the organic
zation of the Supreme Court, as a distinct and inde-
pendent department, it admitted of a different answer.
It was founded upon the general maxim of requiring
a separation of the different departments of gov-
ernment, as most conducive to the preservation of
public liberty and private rights. It would not, indeed,
1 The Federalist, No. 81. — The learned reader will trace out, in sub-
sequent periods of our history, the same objections revived in other im-
posing forms under the sanction of men, who have attained high ascen-
dancy and distinction in the struggles of party.
444 CONSTITUTION OF THE U. STATES. [bOOK III.
absolutely violate that maxim, to allow the ultimate ap-
pellate jurisdiction to be vested in one branch of the
legislative body. But there were many urgent reasons,
why the proposed organization would be preferable.
It would secure greater independence, impartiaUty, and
uniformity in the administration of justice.
§ 1579. The reasoning of the Federalist ^ on this point
is so clear and sadsfactory, and presents the whole
argument in so condensed a form, that it supersedes all
farther formal discussion. " From a body, which had
even a pardal agency in passing bad laws, we could
rarely expect a disposition to temper and moderate
them in the application. The same spirit, which had
operated in making them, would be too apt to influence
their construcdon ; still less could it be expected, that
men, who had infringed the consutution, in the charac-
ter of legislators, would be disposed to repair the breach
in that of judges. Nor is this all. Every reason, which
recommends the tenure of good behaviour for judicial
oflSces, militates against placing the judiciary power, in
the last resort, in a body composed of men chosen for
a hmited period. There is an absurdity in referring
the determination of causes, in the first instance, to
judges of permanent standing ; in the last, to those of
a temporary and mutable constitution. And there is a
still greater absurdity in subjecung the decisions of
men selected for the knowledge of the laws, acquired
by long and laborious study, to the revision and control
of men, who, lor want of the same advantage, cannot
but be deficient in that knowledge. The members of
the legislature will rarely be chosen with a view to
those qualifications, which fit men for the stations of
judges ; and as, on this account, there will be great
1 The Federalist, No. 81.
CH. XXXVIII.] JUDICIARY ORGANIZATION. 445
reason to apprehend all the ill consequences of defec-
tive information ; so, on account of the natural propen-
sity of such bodies to party divisions, there will be no
less reason to fear, that the pestilential breath of faction
may poison the fountains of justice. The habit of
being continually marshalled on opposite sides, will be
too apt to stifle the voice both of law and equity.
^ 1580. "These considerations teach us to applaud
the wisdom of those states, who have committed the
judicial power, in the last resort, not to a part of the
legislature, but to distinct and independent bodies of
men. Contrary to the supposition of those, who have
represented the plan of the convention, in this respect,
as novel and unprecedented, it is but a copy of the
constitutions of New-Hampshire, Massachusetts, Penn-
sylvania, Delaware, Maryland, Virginia, North-Carolina,
South- Carolina, and Georgia; and the preference, which
has been given to these models, is highly to be com-
mended.^
§ 1581. "It is not true, in the second place, that the
parliament of Great Britain, or the legislatures of the
particular states, can rectify the exceptionable decisions
of their respective courts, in any other sense, than
might be done by a future legislature of the United
States. The theory, neither of the British nor the
state constitutions, authorizes the revisal of a judicial
sentence by a legislative act. Nor is there any thing
in the proposed constitution, more than in either of
them, by which it is forbidden. In the former, as in
the latter, the impropriety of the thing, on the general
principles of law and reason, is the sole obstacle. A
legislature, without exceeding its province, cannot re-
1 At the present time the same scheme of organizing the judicial
power exists suhstantially in every state in the Union, except in N. York.
446 CONSTITUTION OF THE U. STATES. [bOOK III.
verse a determination, once made, in a particular case ;
though it may prescribe a new rule for future cases.
This is the principle, and it applies, in all its conse-
quences, exactly in the same manner and extent to the
state governments, as to the national government, now
under consideration. Not the least difference can be
pointed out in any view of the subject.
§1582. "It may, in the last place, be observed, that
the supposed danger of judiciary encroachments on
the legislative authority, which has been upon many
occasions reiterated, is, in reality, a phantom. Particu-
lar misconstructions and contraventions of the will of
the legislature may now and then happen ; but they
can never be so extensive, as to amount to an incon-
venience, or, in any sensible degree, to affect the order
of the political system. This may be inferred with
certainty from the general nature of the judicial power;
from the objects, to which it relates ; from the manner,
in which it is exercised ; from its comparative weak-
ness ; and from its total incapacity to support its usur-
pations by force. And the inference is greatly fortified
by the consideration of the important constitutional
check, which the power of instituting impeachments in
one part of the legislative body, and of determining
upon them in the other, would give to that body upon
the members of the judicial department. This is alone
a complete security. There never can be danger, that
the judges, by a series of deliberate usurpations on the
authority of the legislature, would hazard the united
resentment of the body intrusted with it, while this
body was possessed of the means of punishing their
presumption, by degrading them from their stations.
While this ought to remove all apprehensions on the
subject, it affords, at the same time, a cogent argument
CH. XXXVIII.] JUDICIARY ORGANIZATION. 447
for constituting the senate a court for the trial of im-
peachments."
§ 1583. In regard to the power of constituting infe-
rior courts of the Union, it is evidently calculated to
obviate the necessity ot having recourse to the Su-
preme Court in every case of federal cognizance. It
enables the national government to institute, or author-
ize, in each state or district of the United States, a
tribunal competent to the determination of all matters
of national jurisdiction within its limits. One of two
courses only could be open for adopdon ; either to cre-
ate inferior courts under the national authority, to reach
all cases ht for the nadonal jurisdiction, which either
constitutionally, or conveniently, could not be of original
cognizance in the Supreme Court ; or to confide juris-
dicdon of the same cases to the state courts, with a
right of appeal to the Supreme Court. To the latter
course solid objecdons were thought to apply, which
rendered it ineligible and unsatisfactory. In the first
place, the judges of the state courts would be wholly
irresponsible to the national government for their con-
duct in the administradon of national jusUce ; so, that
the nadonal government would, or might be, wholly
dependent upon the good will, or sound discretion of
the states, in regard to the efficiency, prompdtude, and
ability, with which the judicial authority of the nation
was administered. In the next place, the prevalency
of a local, or sectional spirit might be found to disqual-
ify the state tribunals for a suitable discharge of national
judicial functions ; and the very modes of appointment
of some of the state judges might render them impro-
per channels of the judicial authority of the Union.^
1 The Federalist, No. 81. See also Cohens v. Virginia, 6 Wheat. R.
386, 387.
448 CONSTITUTION OF THE U. STATES. [bOOK III.
State judges, holding their offices during pleasure, or
from year to year, or for other short periods, would, or •
at least might, be too little independent to be relied,
upon for an inflexible execution of the national laws.
What could be done, where the state itself should
happen to be in hostility to the national government, as
might well be presumed occasionally to be the case,
from local interests, party spirit, or peculiar prejudices,
if the state tribunals were to be the sole depositaries
of the judicial powers of the Union, in the ordinary
administration of criminal, as well as of civil justice ?
Besides ; if the state tribunals were thus entrusted
with the ordinary administration of the criminal and
civil justice of the Union, there would be a necessity
for leaving the door of appeal as widely open, as pos-
sible. In proportion to the grounds of confidence in,
or distrust of the subordinate tribunals, ought to be the
facihty or difficulty of appeals. An unrestrained course
of appeals would be a source of much private, as well
as public inconvenience. It would encourage litigation,
and lead to the most oppressive expenses.^ Nor should
it be omitted, that this very course of appeals would
naturally lead to great jealousies, irritations, and col-
lisions between the state courts and the Supreme Court,
not only from differences of opinions, but from that
pride of character, and consciousness of independence,
which would be felt by state judges, possessing the confi-
dence of their own state, and irresponsible to the Union.^
1 The Federalist, No. 81.
2 Mr. Rawle has remarked, that "the state tribunals are no part of
the government of the United States. To render the government of
the United States dependent on them, would be a solecism almost as
great, as to leave out an executive power entirely, and to call on the
states alone to enforce the laws of the Union." Rawle on Const, oh. 21,
p. 200.
CH. XXXVIII.] JUDICIARY-POWER OF CONGRESS. 449
§ 1584. Ill considering the first clause of the third
section, declaring, that '' the judicial power of the Uni-
"ted States shall be vested in one Supreme Court, and
"in such inferior courts, as the congress may from time
" to time ordain and estabhsh," we are naturally led to
the inquiry, whether congress possess any discretion,
as to the creation of a Supreme Court and inferior
courts, in whom the constitutional jurisdiction is to be
vested. This was at one time matter of much discus-
sion; and is vital to the existence of the judicial de-
partment. If congress possess any discredon on this
subject, it is ob\ious, that the judiciary, as a co-ordi-
nate department of the government, may, at the will
of congress, be annihilated, or stripped of all its impor-
tant jurisdiction ; for, if the discretion exists, no one can
say in what manner, or at what dme, or under what
circumstances it may, or ought to be exercised. The
whole argument, upon which such an interpretadon has
been attempted to be maintained, is, that the language
of the constitution, " shall be vested," is not impera-
tive, but simply indicates the future tense. This in-
terpretation has been overruled by the Supreme Court,
upon solemn deliberation.^ " The language of the third
article," say the court, " throughout is manifestly de-
signed to be mandatory upon the legislature. Its ob-
ligatory force is so imperative, that congress could not,
without a violation of its duty, have refused to carry it
into operation. The judicial power of the United
States shall be vested (not may be vested) in one Su-
preme Court, and in such inferior courts, as congress
1 See Martin v. Hunter, 1 Wheat. R. 304,316.— The Commentator,
in examining the structure and jurisdiction of the judicial department,
is compelled by a sense of official reserve to confine his remarks chiefly
to doctrines, Avhich arc settled, or which have been deemed incontro-
vertible, leaving others to be discussed by those, who are unrestrained
by such considerations.
VOL. III. 57
450 CONSTITUT^ION OF THE U. STATES. [bOOK III.
may, from time to time, ordain and establish. Could
congress have lawfully refused to create a Supreme
Court, or to vest in it the constitutional jurisdiction?
'The judges, both of the supreme and inferior courts,
shall hold their offices during good behaviour, and shall,
at stated times, receive, for their services, a compensa-
tion, which shall not be diminished during their contin-
uance in office.' Could congress create or limit any
other tenure of the judicial ottice? Could they refuse
to pay, at stated times, the stipulated salary, or dimin-
ish it during the continuance in office? But one an-
swer can be given to these questions ; it must be in the
negative. The object of the constitution w as to estab-
hsh three great departments of government ; the legis-
lative, the executive, and the judicial department.
The first was to pass laws, the second to approve and
execute them, and the third to expound and enforce
them. Without the latter, it would be impossible to
carry into effect some of the express provisions of the
constitution. How, otherwise, could crimes against the
United States be tried and punished? How could
causes between tw^o states be heard and determined?
The judicial power must, therefore, be vested in some
court by congress ; and to suppose, that it was not an
obligation binding on them, but might, at their ])leasure,
be omitted, or dechned, is to suppose, that, under the
sanction of the consdtution, they might defeat the con-
stitution itself. A construction, which would lead to such
a result, cannot be sound.
^ 1585. ."The same expression, 'shall be vested,'
occurs in other parts of the constitution, in defining the
powers of the other co-ordinate branches of the gov-
ernment. The first article declares, that 'all legislative
powers herein granted shall be vested in a congress of
the Uniled States.' Will it be contended, that the
CH. XXXVIII.] JUDICIARY-POWER OF CONGRESS. 451
legislative power is not absolutely vested? that the
words merely refer to some future act, and mean only,
that the legislative power may hereafter be vested?
The second article declares, that ' the executive power
shall be vested in a president of the United States of
America.' Could congress vest it in any other per-
son ; or, is it to await their good pleasure, whether it is
to vest at all? It is apparent, that such a construction,
in either case, would be utterly inadmissible. Why,
then, is it entitled to a better support in reference to
the judicial department?
§ 1588. "If, then, it is a duty of congress to vest the
judicial power of the United States, it is a duty to vest
the ichole judicial power. The language, if imperative,
•as to one part, is imperative, as to all. If it were oth-
erwise, this anomaly would exist, that congress might
successively refuse to vest the jurisdiction in any one
class of cases enumerated in the constitution, and there-
by defeat the jurisdiction, as to all ; for the constitution
has not singled out any class, on which congress are
bound to act in preference to others.
^ 1587. "The next consideration is as to the courts,
in which the judicial power shall be vested. It is man-
ifest, that a supreme court must be established ; but
whether it be equally obligatory to establish inferior
courts, is a question of some difficulty. If congress
may lawfully omit to establish inferior courts, it might
follow, that, in some of the enumerated cases, the judi-
cial power could nowhere exist. The supreme court
can have original jurisdiction in two classes of cases
only, viz. in cases affecting ambassadors, other public
ministers and consuls, and in cases, in which a state is
a party. Congress cannot vest any portion of the ju-
dicial power of the United States, except in courts or-
dained and established by itself; and if, in any of the
452 CONSTITUTION OF THE U. STATES. [bOOK III.
cases enumerated in the constitution, the state courts
did not then possess jurisdiction, the appellate jurisdic-
tion of the supreme court (admitting that it could act
on state courts) could not reach those cases ; and, con-
sequently, the injunction of the constitution, that the
judicial power ' shall he vested' would be disobeyed.
It would seem, therefore, to follow, that congress are
bound to create some inferior courts, in which to vest
all that jurisdiction, wdiich, under the constitution, is
exclusively vested in the United States, and of which
the Supreme Court cannot take original cognizance.
They might establish one or more inferior courts ; they
might parcel out the jurisdicUon among such courts,
from time to dme, at their own pleasure. But the
whole judicial power of the United States should be, at
all times, vested either in an original or appellate form,
in some courts created under its authority.
§ 1588. "This construction will be fordfied by an
attentive examination of the second section of the third
article. The words are ' the judicial power shall ex-
tend,' «Slc. Much minute and elaborate criticism has
been employed upon these words. It has been argued,
that they are equivalent to the words 'may extend,'
and that 'extend' means to widen to new cases not
before within the scope of the povver. For the rea-
sons, which have been already stated, we are of opinion,
that the words are used in an imperative sense. They
import an absolute grant of judicial power. They can-
not have a relative signification applicable to powers
already granted ; for the Amev\cm\ people had not made
any previous grant. The consitution was for a new
government, organized with new substantive powers,
and not a mere supplementary charter to a government
already existing. The confederation was a compact
between states ; and its structure and powers were
CH. XXXVin.] JUDICIARY- POWER OF CONGRESS. 453
wholly unlike those of the national government. The
constitution was an act of the people of the United
States to supersede the confederation, and not to be
ingrafted on it, as a stock through which it was to re-
ceive life land nourishment,
^ 1589. " If, indeed, the relative signification could be
fixed upon the term 'extend,' it would not (as we shall
hereafter see) subserve the purposes of the argument,
in support of which it has been adduced. This impera-
tive sense of the words ' shall extend,' is strengthened
by the context. It is declared, that ' in all cases af-
fecting ambassadors, &c., the supreme court shall
have original jurisdiction.' Could congress withhold
original jurisdiction in these cases from the supreme
court ? The clause proceeds — ' in all the other cases
before mentioned the supreme court shall have appel-
late jurisdiction, both as to law and fact, with such ex-
ceptions, and under such regulations, as the congress
shall make.' The very exception here shows, that the
framers of the constitution used the words in an imper-
ative sense. What necessity could there exist for this
exception, if the preceding words were not used in that
sense? Without such exception, congress would, by
the preceding words, have possessed a complete power
to regulate the appellate jurisdiction, if the language
were only equivalent to the words 'may have' appel-
late jurisdiction. It is apparent, then, that the excep-
tion was intended as a limitation upon the preceding
words, to enable congress to regulate and restrain the
appellate power, as the public interests might, from
time to time, require.
^ 1590. " Other clauses in the constitution might be
brought in aid of this construction ; but a minute exami-
nation of them cannot be necessary, and would occupy
too much time. It will be found, that, whenever a par-
454 CONSTITUTION OF THE U. STATES. [bOOK III.
ticular object is to be effected, the language of the
constitution is always imperative, and cannot be^disre-
garded, without violating the first principles of public
duty. On the other hand, the legislative powers are
given in language, which implies discretion, as from the
nature of legislative power such a discretion must ever
be exercised." We shall presently see the important
bearing, which this reasoning has upon the interpreta-
tion of that section of the constitution, which concerns
the jurisdiction of the national tribunals.
^ 1591. The constitution has wisely established,
that there shall be one Supreme Court, with a view to
uniformity of decision in all cases whatsoever, belong-
in o- to the judicial department, whether they arise at
the common law or in equity, or within the admiralty
and prize jurisdiction ; whether they respect the doc-
trines of mere municipal law, or constitutional law, or
the law of nations. It is obvious, that, if there were in-
dependent supreme courts of common law, of equity,
and of admiralty, a diversity of judgnnent might, and
almost necessarily would spring up, not only, as to the
limits of the jurisdiction of each tribunal ; but as to the
fundamental doctrines of municipal, constitutional, and
public law. The effect of this diversity would be, that
a different rule would, or might be promulgated on the
most interesting subjects by the several tribunals ; and
thus the citizens be involved in endless doubts, not
only as to their private rights, but as to their public du-
ties. The constitution itself would or might speak a
different language according to the tribunal, which was
called upon to interpret it ; and thus interminable dis-
putes embarrass the administration of justice through-
out the whole country.^ But the same reason did not
1 Dr. Paley's remarks, though general in tlieir character, show a
striking coincidence of opinion between the wisdom of the new, and the
CH. XXXVIII.] JUDICIARY-POWER OF COXORESS. 455
apply to the inferior tribunals. These were, therefore,
left entirely to the discretion of congress, as to their
number, their jurisdiction, and their powers. Experi-
ence might, and probably woukl, show good grounds
for varying and modifying them from time to time. It
would not only have been unwise, but exceedingly in-
convenient, to have fixed the arrangement of these
courts in the constitution itself; since congress would
have been disabled thereby from adapting them from
time to time to the exigencies of the country.^ But,
whatever may be the extent, to which the power of
congress reaches, as to the estabhshment of inferior tri-
bunals, it is clear from what has been already stated,
that all the jurisdiction contemplated by the constitu-
wisdom of the old world. SpeakirifT on tho subject of the necessity of
one supreme appellate tribunal lie s-iys : "Cut, lastly, if several courts,
co-ordinate to and independent of each other, subsist together in the
country, it seems necessary, that the appeals from all of them should
meet and terminate in the same judicature ; in order, that one supreme
tribunal, by whose final sentence all others are bound and concluded,
may superintend and preside over the rest. Tiiis constitution is neces-
sary for two purposes; — to preserve a uniformity in the decisions of in-
ferior courts, and to maintain to each the proper limits of its jurisdiction.
Without a common superior, different courts might establish contradic-
tory rules of adjudication, and the contradiction be final and without
remedy ; the same question might receive opposite determinations, ac-
cording as it was brought before one court or another, and the deter-
mination in each be ultimate and irreversible, A common appellant
jurisdiction prevents or puts an end to this confusion. For when the
judoments upon appeals arc consistent, (which may be expected, while it
is the same court, which is at last resorted to,) the different courts,
from which the appeals are brought will be reduced to a like consisten-
cy with one another. Moreover, if questions arise between courts inde-
pendent of each other, concerning the extent and boundaries of their
respective jurisdiction, as ea(di will be desirous of enlarging its own, an
authority, which both acknowledge, can alor^e adjust the controversy.
Such a power, therefore, umst reside somewhere, lest the rights and re-
pose of the country be distracted by the endless opposition and mutual
encroachments of its courts of justice."
2 See 2 Elliot's Debates, 360.
456 CONSTITUTION OF THE U. STATES. [bOOK III.
tion must be vested in some of its com^ts, either in an
original, or an appellate form.
§ 1592. We next come to the consideration of those
securities, which the constitution has provided for the
due independence and efficiency of the judicial de-
partment.
^ 1593. The mode of appointment of the judges
has necessarily come under review, in the examination
of the structure and powers of the executive depart-
ment. The president is expressly authorized, by and
with the consent of the senate, to appoint the judges
of the Supreme Court. The appointment of the
judges of the inferior courts, is not expressly provided
for; but has either been left to the discretion of con-
gress, or silently belongs to the president, under the
clause of the constitution authorizing him to appoint
"' all other officers of the United States, whose ap-
" pointments are not herein otherwise provided for." ^
In the convention, a proposition at first prevailed, for
the appointment of the judges of the Supreme Court
by the senate, by a decided majority.^ At a later pe-
riod, howevei% upon the report of a committee, the
appointment of the judges of the Supreme Court, was
given to the president, subject to the advice and consent
of the senate, by a unanimous vote.^ The reasons for
the change, were doubtless the same as those, which
1 Whetlier tlie Judges of the inferior courts of the United Slates are
such inferior officers, as the constitution contemplates to l)e within the
power of congress, to prescribe the mode of appointment of, so as to
vest it in the president alone, or in the courts of law, or in the liearls of
departments, is a point, upon which no soh^mn judgment has ever been
had. Tlie practical construction has uniformly been, that they are not
such mferior officers. And no act of congress prescribes tlie mode of
their i-ppointment. See the American Jurist for October, 1830, vol. 4,
art. V. p. 2!)8.
2 Journal of Convention, GO, 98, 1^1,137; ISG, 187, 195, 1C6, 211,
212.
3 Id. 325, 32G, 340.
CH. XXXYI II.] JUDICIARY -TENURE OF OFFICE. 457
led to the vesting of other high appointments in the
executive department.^
§ 1594. The next consideration is the tenure,
hy which the judges hold their offices. It is de-
clared that "the judges, both of the Supreme and In-
1 The Federalist, No. 78. — Mr. Chancellor Kent has summed up the
reasoning-, in favour of an appointment of the judges by the executive,
with his usual strength. "The advantages of the mode of appoint-
ment of public officers by the president and senate have been already
considered. This mode is peculiarly fit and proper, in respect to the
judiciary department. The just and vigorous investigation and punish-
ment of every species of fraud and violence, and the exercise of the
power of compelling every man, to the punctual performance of his
contracts, are grave duties, not of the most popular character, though
the faithful discharge of them, will certainly command the calm appro-
bation of the judicious observer. The fittest men would probaldy have
too much reservedness of manners, and severity of morals, to secure
an election resting on universal suffrage. Nor can the mode of ap-
pointment by a large deliberative assembly be entitled to unquali-
fied approbation. There are too many occasions, and too much tempta-
tion for intrigue, party prejudice, and local interests, to permit such a
body of men to act, in respect to such appointments, with a sufficiently
single and steady regard for the general welfare. In ancient Rome,
the prsetor was chosen annually by the people, but it was in the comitia
by centuries ; and the choice was confined to persons belonging to the
patrician order, until the close of the fourth century of the city, when
the office was rendered accessible to the plebeians ; and when they
became licentious, says Montesquieu, the office became corrupt. The
popular elections did very well, as he observes, so long as the people
were free, and magnanimous, and virtuous, and the public was without
corruption. But all plans of government, which suppose the people
will always act with wisdom and'integrity, are plainly Utopian, and con-
trary to uniform experience. Government must be framed for man, as
he is, and not for man, as he would be, if he were free from vice. With-
out referring to those cases in our own country, where judges have
been annually elected by a popular assembly, we may take the less in-
vidious case of Sweden. During the diets, which preceded the revolu-
tion in 1772, the states of the kingdom sometimes appointed commis-
sioners to act as judges. The strongest party, says Catteau, prevailed
in the trials, that came before them ; and persons condemned by one
tribunal were acquitted by another." 1 Kent's Comm. Lcct. 14, p. 273^
274, (2d edition, p. 29J, 292.)
VOL. III. 58
458 CONSTITUTION OF THE U. STATES. [bOOK 111.
" ferior Courts shall hold their offices during good be-
"haviour."^ Upon this subject, the Federalist has
spoken with so much clearness and force, that little
can be added to its reasoning. "The standard of
good behaviour, for the continuance in office of the
judicial magistracy, is certainly one of the most valua-
ble of the modern improvements in the practice of
government. In a monarchy, it is an excellent barrier
to the despotism of the prince : in a republic, it is a no
less excellent barrier to the encroachments and oppres-
sions of the representative body. And it is the best
expedient, which can be devised in any government, to
secure a steady, upright, and impartial administration of
the laws. Whoever attentively considers the different
departments of power, must perceive, that in a gov-
ernment, in which they are separated from each other,
the judiciary, from the nature of its functions, will al-
w^ays be the least dangerous to the poUtical rights of
the constitution ; because it wdll be least in a capacity
to annoy, or injure them. The executive not only dis-
penses the honours, but holds the sword of the com-
munity. The legislature, not only commands the purse,
but prescribes the rules, by which the duties and rights
of every citizen are to be regulated. The judiciary, on
the contrary, has no influence over either the swcrd, or
the purse ; no direction either of the strength, or of
the wealth of the society ; and can take no active reso-
ludon w^hatever. It may truly be said to have neither
force, nor icill, but merely judgment ; and must uld-
mately depend upon the aid of the executive arm, for
the efficacious exercise even of this faculty.
1 For the interpretation of the meaning of the Avords good bcliavioitr,
see the judgment of Lord Holt, in Harcourt v. Fox] 1 Shower's K. 426,
506, 536. b\ C. Shower's Cases in Pari. 158.
CH. XXXVm.] JUDICIARY -TENURE OF OFFICE. 459
§ 1595. ''This simple view of the matter suggests
several important consequences. It proves incontesti-
blj that the jutliciary is, beyond comparison, the weak-
est of the three departments of power; that it can
never attack with success either of the other two;
and that all possible care is requisite to enable it to
defend itself against their attacks. It equally proves,
that, though individual oppression may now and then
proceed Irom the courts of justice, the general liberty
of the people can never be endangered from that quar-
ter: I mean, so long as the judiciary remains truly dis-
tinct from both the legislature and executive. — For I
agree, that ' there is no liberty, if the power of judg-
ing be not separated from the legislative and executive
powers.' It proves, in the last place, that as liberty can
have nothing to fear from the judiciary alone, but would
have every thing to fear from its union with either of
the other departments ; that, as all the effects of such
an union must ensue from a dependence of the former
on the latter, notwithstanding a nominal and apparent
separation ; that as, from the natural feebleness of the
judiciary, it is in condnual jeopardy of being over-
powered, awed, or influenced by its co-ordinate branch-
es; that, as nothing can contribute so much to its firm-
ness and independence, as permanencTj in office, this
quality may, therefore, be justly regarded, as an indis-
pensable ingredient in its constitution ; and, in a great
measure, as the citadel of the public justice and the
public security."
^ 1596. "If then, the courts of justice are to be
considered, as the bulwarks of a limited constitution
against legislative encroachments ; this consideration
will afford a strong argument for the permanent tenure
of judicial offices, since nothing will contribute, so much
460 COIVSTITUTION OF THE U. STATES. [bOOK III.
as this, to that independent spirit in the judges, which
must be essential to the laithful performance of so
arduous a duty. This independence of the judges is
equally requisite to guard the constitution and the rights
of individuals from the effects of those ill humours,
which the arts of designing men, or the influence of
particular conjunctures, sometimes disseminate among
the people themselves ; and which, though they speedily
give place to better information, and more deliberate
reflection, have a tendency, in the mean time, to occa-
sion dangerous innovations in the government, and
serious oppressions of the minor party in the commu-
nity. Though, I trust, the friends of the proposed
constitution will never concur with its enemies, in
questioning that fundamental principle of republican
government, which admits the right of the people to i
alter or abohsh the established constitution, whenever 'i
they find it inconsistent with their happiness ; yet it is
not to be inferred from this principle, that the repre-
sentatives of the people, whenever a momentary incli-
nation happens to lay hold of a majority of their con-
stituents, incompatible with the provisions in the exist-
ing constitution, would, on that account, be justifiable
in a violation of those provisions ; or that the courts
would be under a greater obligation to connive at in-
fractions in this shape, than when they had proceeded
wholly from the cabals of the representative body.
Until the people have, by some solemn and authorita-
tive act, annulled or changed the established form, it
is binding upon themselves collectively, as well as in-
dividually ; and no presumption, or even knowledge of
their sentiments, can warrant their representatives in a
departure from it, prior to such an act. But it is easy
to see, that it would require an uncommon portion of
CH. XXXVIII.] JUDICIARY- TENURE OF OFFICE. 461
fortitude in the judges to do their duty, as faiihlul
guardians of the constitution, where legislative invasions
of it have been instigated by the major voice of the
community.
§ 1597. "But it is not with a view to infractions of
the constitution only, that the independence of the
judges may be an essential safeguard against the
effects of occasional ill humours in the society. These
sometimes extend no further, than to the injury of the
private rights of particular classes of citizens by unjust
and partial laws. Here, also, the firmness of the judi-
cial magistracy is of vast importance, in mitigating the
severity, and confining the operadon of such laws.
It not only serves to moderate the immediate mischiefs
of those, which may have been passed; but it operates
as a check upon the legislative body in passing them ;
who, perceiving that obstacles to the success of an ini-
quitous intention are to be expected from the scruples
of the courts, are in a manner compelled by the very
motives of the injustice they meditate, to qualify their
attempts. This is a circumstance calculated to have
more influence upon the character of our governments,
than but few may imagine. The benefits of the integ-
rity and moderation of the judiciary have already
been felt in more states than one ; and though they
may have displeased those, whose sinister expectations
they may have disappointed, they must have com-
manded the esteem and applause of all the virtuous
and disinterested. Considerate men of every descrip-
tion ought to prize whatever will tend to beget or for-
tify that temper in the courts ; as no man can be sure,
that he may not be to-morrow the vicdm of a spirit
of injustice, by which he may be a gainer to-day.
And every man must now feel, that the inevitable ten-
462 CONSTITUTION OF THE U. STATES. [bOOK III.
dency of such a spirit is to sap the foundations of pub-
lic and private confidence, and to introduce in its stead
universal distrust and distress.
^ 1598. "That inflexible and uniform adherence to
the rights of the constitution, and of individuals, which
we perceive to be indispensable in the courts of just-
ice, can certainly not be expected from judges, who
hold their offices by a temporary commission. Peri-
odical appointments, however regulated, or by whom-
soever made, w^ould, in some w^ay or other, be fatal to
their necessary independence. If the power of making
them was committed either to the executive or legisla-
ture, there would be danger of an improper com-
plaisance to the branch, which possessed it ; if to both,
there would be an unwilHngness to hazard the displea-
sure of either ; if to the people, or to persons chosen
by them for the special purpose, there would be too
great a disposition to consult popularity to justify a
rehance, that nothing w^ould be consulted, but the con-
stitution and the laws.
^ 1599. "There is yet a further and a weighty rea-
son for the permanency of judicial offices, which is
deducible from the nature of the quahfications they re-
quire. It has been frequently remarked with great
propriety, that a voluminous code of laws is one of the
inconveniencies necessarily connected with the advan-
tages of a free government. To avoid an arbitrary
discretion in the courts, it is indispensable, that they
should be bound down by strict rules and precedents,
which serve to define, and point out their duty in every
particular case, that comes before them. And it will
readily be conceived, from the variety of controversies,
which grow out of the folly and wickedness of mankind,
that the records of those precedents must unavoidably
CH. xxxviil] judiciary -tenure of office. 463
swell to a very considerable bulk, and must deniaiul
long and laborious study, to acquire a competent know-
ledge of them. Hence it is, that there can be but lew
men in the society, who will have sufficient skill in the
laws to qualify them for the stations of judges. And
making the proper deductions for the ordinary de-
pravity of human nature, the number must be still
smaller of those, who unite the requisite integrity with
the requisite knowledge. These considerations ap-
prise us, that the government can have no great option
between fit characters ; and that a temporary duration
in office, which would naturally discourage such cha-
racters from quitting a lucrative line of practice to ac-
cept a seat on the bench, would have a tendency to
throw the administradon of justice into hands, less able,
and less well qualified to conduct it with utility and
dignity. In the present circumstances of this country,
and in those, in which it is likely to be for a long time
to come, the disadvantages on this score would be
greater, than they may at first sight appear ; but it must
be confessed, that they are far inferior to those, which
present themselves under the other aspects of the
subject.
§ 1600. "Upon the whole, there can be no room to
doubt, that the convention acted wisely in copying
from the models of thos^ constitutions, which have es-
tablished good behaviour, as the tenure of judicial
offices in point of duration ; and that, so far from being
blameable on this account, their plan would have been
inexcusably defective, if it had wanted this important
feature of good government. The experience of Great
Britain affi)rds an illustrious comment on the excellence
of the institution."
^ 1601. These remarks will derive additional
464 CONSTITUTION OF THE U. STATES. [bOOK III.
Strength and confirmation, from a nearer survey of the
judicial branch of foreign governments, as well as of
the several states composing the Union. In England,
the king is considered, as the fountain of justice ; not
indeed as the author, but as the distributer of it ; and
he possesses the exclusive prerogative of erecting
courts of judicature, and appointing the judges.^ In-
deed, in early times, the kings of England often in
person heard and decided causes between party and
party. But as the constitution of government became
m )ie settled, the whole judicial power was delegated
to the judges of the several courts of justice; and any
attempt, on the part of the king, now to exercise it in
person, would be deemed an usurpation.^ Anciently,
the Enghsh judges held their offices according to the
tenure of their commissions, as prescribed by the crown,
which was generally during the pleasure of the crown,
as is the tenure of office of the Lord Chancellor, the
judges of the courts of admiralty, and others, down to
the present day. In the time of Lord Coke, the
Barons of the Exchequer held their offices during good
behaviour, while the judges of the other courts of com-
mon law held them only during pleasure.^ And it has
been said, that, at the time of the restoration of Charles
the Second, the commissions of the judges were dur-
ing good behaviour.^ Still, however, it was at the
1 1 Black. Comm. 267; 2 Hawk. B. 2, ch. 1, § 1, 2, 3 ; Com. Dig.
Prerogative, D. 28 ; Id. Courts, A. ; Id. Officers, A. ; Id. Justices, A.
2 Ibid ; 1 Woodes. Lect. Ill, p. 87 ; 4 Inst. 70, 71 ; 2 Hawk. B. 2, ch.
1, § 2, 3 ; 1 Black. Comm. 41, and note by Christian.
3 4 Coke Inst. ch. 12, p. 117 ; Id. ch. 7, p. 75. — The tenure of office
of the Attorney and Solicitor General was at this period during good
behaviour ; 4 Coke, Inst. 117.
4 1 Kent's Coinm. Lect. 14, p. 275.
CH. XXXVin.] JUDICIARY-TENURE OF OFFICE. 465
pleasure of the crown, to prescribe what tenure of
of lice it might choose, until after the revolution of 16<S8;
and there can be no doubt, that a monarch so profli-
gate as Charles the Second, would avail himself of the
prerogative, as often as it suited his political, or other
objects.
§ 1G02. It is certain, that this power of the crown
must have produced an influence upon the administra-
tion, dangerous to private rights, and subversive of
the public liberties of the subjects. In political accu-
sations, in an especial manner, it must often have pro-
duced the most disgraceful comphances with the wishes
of the crown ; and the most humiliating surrenders of
the rights of the accused.^ The Statute of 13 Will. 3,
ch. 2, provided, that the commissions of the judges
of the courts of common law should not be as formerly
durante bene placito, but should be quam diu bene se
gesserinf, and their salaries be ascertained, and estab-
Ushed. They were made removeable, however, by the
king, upon the address of both houses of parliament ;
and their offices expired by the demise of the king.
Afterwards by a statute enacted in the reign of George
the Third, at the earnest recommendation of the king,
a noble improvement was made in the law, by which
the judges are to hold their offices during good behav-
iour, notwithstanding any demise of the crown ; and
their full salaries are secured to them, during the con-
tinuance of their commissions.^ Upon that occasion,
the monarch made a declaration, worthy of perpetual
1 See De Lolme, B. 2, ch. 16, p. 350 to 354, 3G2. — The State Trials
before the year 1GS8 exhibit the most gross and painful illustrations of
these remarks. Subserviency to the crown was so general in state
prosecutions, that it ceased almost to attract public indignation.
2 1 Black. Comm. 267, 268.
VOL. III. 59
466 CONSTITUTION OF THE U. STATES. [bOOK III.
remembrance, that "he looked upon the indepen-
dence and uprightness of the judges, as essential to
the impartial administration of jusdce ; as one of the
best securities of the rights and liberties of his sub-
jects ; and as most conducive to the honour of the
crown." ^ Indeed, since the independence of the
judges has been secured by this permanent duration of
office, the administration of justice has, with a single
exception,^ flowed on in England, wdth an uninterrupt-
ed, and pure, and unstained current. It is due to the
enlightened tribunals of that nation to declare, that
their learning, integrity, and impartiality, have command-
ed the reverence and respect, as w ell of America, as
Europe.^ The judges of the old parliaments of France
(the judicial tribunals of that country) were, before the
revolution, appointed by the crown ; but they held
their offices for life ; and this tenure of office gave
them substantial independence. Appointed by the
monarch, they were considered as nearly out of his
power. The most determined exertions of that au-
thority against them only showed their radical inde-
pendence. They composed permanent bodies politic,
constituted to resist arbitrary innovation ; and from
that corporate consdtution, and from most of their pow-
ers they w^ere well calculated to afford both certainty
and stability to the laws. They had been a safe asylum
to secure their law^s, in all the revolutions of human
opinion. They had saved that sacred deposit of the
1 1 Black. Comm. 207, 2G8.
2 Lord Macclesfield.
3 Dc Lolmc lias dwelt on this siilyect, with abundant satisfaction.
(Do Lolmc, B. 2, ch. IG, p. 303 to 305.) The Eulogy of Emcrigon has
been often quoted, and indeed is as true, as it is striking. 2 Emcrigon,
67, cited in 1 Marshall on Insurance, Preliminary Discourse, p. 30, note.
CH. XXXVIII.] JUDICIARY -TENURE OF OFFICE. 467
country during the reigns of arbitrary princes, and the
struggles of arbitrary factions. They kept alive the
memory and record of the constitution. They were
the great security to private property, which might be
said (when personal liberty had no existence,) to be
as well guarded in France, as in any other country.^
§ 1603. The importance of a permanent tenure of
office, to secure the independence, integrity, and im-
partiality of judges, was early understood in France.
Louis the Eleventh, in 1467, made a memorable dec-
laration, that the judges ought not to be deposed, or
deprived of their offices, but for a forfeiture previously
adjudged, and judicially declared by a competent tri-
bunal. The same declaration was often conffimed by
his successors; and after the first excesses of the
French revolution were passed, the same principle ob-
tained a public sanction. And it has now become in-
corporated, as a fundamental principle, into the present
charter of France, that the judges appointed by the
crown shall be irremoveable.^ Other European nations
have followed the same example ;^ and it is highly
probable, that as the principles of free governments
prevail, the necessity of thus establishing the indepen-
dence of the judiciary will be generally felt, and firmly
provided for.^
1 This is the very language of Mr. Burke in his Reflections on the
French Revolution. See also De Lolme, B. 1, ch. 12, p. ]51), note.
2 Merlin's Repertoire, art. Juge, No. 3.
3 1 Kent's Comm. Lect. 14, p. 27.5.
4 Dr. Paley's remarks on this subject arc not the least valuable of his
excellent writings. "The next security for the impartial administra-
tion of justice, especially in decisions, to wliich government is a party,
is the independency of the judges. As protection against every illegal
attack upon the rights of the subject by the servants of the crown is
to be sought for from these tribunals, the judges of the land become
not unfrcquently the arbitrators between the king and the people; on
468 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1604. It has sometimes been suggested, that,
though in monarchial governments the independence
of the judiciary is essential, to guard the rights of the
subjects from the injustice and oppression of the
crown ; yet that the same reasons do not apply to a
republic, where the popular will is sufficiently known,
and ought always to be obeyed.^ A htde considera-
tion of the subject will satisfy us, that, so far from this
being true, the reasons in favour of the independence
of the judiciary apply with augmented force to repub-
lics ; and especially to such as possess a written con-
stitution with defined powers, and Hmited rights.
^ 1605. In the first place, factions and parties are
quite as common, and quite as violent in republics, as
in monarchies ; and the same safeguards are as indis-
pensable in the one, as in the other, against the en-
croachments of party spirit, and the tyranny of fac-
tions. Laws, however wholesome or necessary, are
frequently the objects of temporary aversion, and
popular odium, and sometimes of popular resistance.^
which account they oijj^ht to 1)0 independent of eitlicr; or, wliat is the
same thing, equally dependent upon both: that is, if they be appointed
by the one, they should he removable only by tlia other. This M-as the
policy, which dictated the memorable improvement in our constitution,
by which the judges, who before the revolution lield iheir offices during
the pleasure of the king, can now be deprived of them only by an ad-
dress from both houses of parliament ; as the most regular, solemn, and
authentic way, by which the dissatisfaction of the people can be ex-
pressed. To make this independency of the judges complete, the pub-
lic salaries of their office ought not only to be certain both in amount
and continuance, but so liberal, as to secure their integrity from the
temptation of secret bribes ; which liberality will answer, also, the fur-
ther purpose of preserving their jurisdiction from contempt, and their
characters from suspicion ; as well as of rendering the office worthy of
the ambition of men of eminence in their profession."
1 4 Jefferson's Corresp. 287, 2S8, ^280, 31(1, 352.
B 1 Kent's Comm. Lcct. 14, p. 275.
CH. XXXVIII.] JUDICIARY- TENURE OF OFFICE. 469
Nothing is more facile in republics, than for dema-
gogues, under artful pretences, to stir up combinations
against the regular exercise of authority. Their selfish
purposes are too often interrupted by the firmness and
independence of upright magistrates, not to make them
at all times hostile to a power, which rebukes, and an
impartiality, which condemns them. The judiciary, as
the weakest point in the constitution, on which to make an
attack, is therefore, constantly that, to which they direct
their assaults; and a triumph here, aided by any moment-
ary popular encouragement, achieves a lasting victory
over the constitution itself. Hence, in republics, those,
who are to profit by public commotions, or the prevalence
of faction, are always the enemies of a regular and in-
dependent administration of justice. They spread all
sorts of delusion, in order to mislead the pubHc mind,
and excite the public prejudices. They know full well,
that, without the aid of the people, their schemes must
prove abortive ; and they, therefore, employ every art
to undermine the public confidence, and to make the
people the instruments of subverting their own rights
and hberties.
^ 1606. It is obvious, that, under such circumstances,
if the tenure of office of the judges is not permanent,
they will soon be rendered odious, not because they
do wrong ; but because they refuse to do wrong ; and
they will be made to give way to others, who shall be-
come more pliant tools of the leading demagogues of
the day. There can be no security for the minority in
a free government, except through the judicial depart-
ment. In a monarchy, the sympathies of the people
are naturally enhsted against the meditated oppres-
sions of their ruler ; and they screen his victims from
his vengeance. His is the cause of one against the
470 CONSTITUTION OF THE U. STATES. [bOOK III.
community. But, in free governments, where the ma-
jority, who obtain power for the moment, are supposed
to represent the will of the people, persecution, espe-
cially of a political nature, becomes the cause of the
community against one. It is the more violent and
unrelenting, because it is deemed indispensable to at-
tain power, or to enjoy the fruits of victory. In free
governments, therefore, the independence of the judi-
ciary becomes far more important to the security of the
rights of the citizens, than in a monarchy ; since it is
the only barrier against the oppressions of a dominant
faction, armed for the moment with power, and abusing
the influence, acquired under accidental excitements,
to overthrow the institutions and liberties, which have
been the deliberate choice of the people.^
^ 1607. In the next place, the independence of the
judiciary is indispensable to secure the people against
the intentional, as well as unintentional, usurpations of
the executive and legislative departments. It has been
observed with great sagacity, that power is perpetually
stealing from the many to the few ; and the tendency
of the legisladve department to absorb all the other
powers of the government has always been dwelt
upon by statesmen and patriots, as a general truth, con-
firmed by all human experience.^ If the judges are ap-
pointed at short intervals, either by the legislative, or the
executive department, they will naturally, and, indeed,
almost necessarily, become mere dependents upon the
appointing power. If they have any desire to obtain,
or to hold office, they will at all times evince a desire
to follow, and o])ey the will of the predominant power
1 1 Kent's Coinm. Lcct. 14, p. 275, 270.
2 1 Wilson's Law Lect. 4G1, 4G2, 4()3.
CH. XXXVIII.] JUDICIARY-TENURE OF OFFICE. 471
in the state. Justice will ])e iidministercd with a fiiult-
ering and feeble hand. It will secure nothing, but its
own place, and the approbation of those, who value,
because they control it. It will decree, what best suits
the opinions of the day; and it will forget, that the pre-
cepts of the law rest on eternal foundations. The
rulers and the citizens will not stand upon an equal
ground in htigations. The favourites of the day will
overawe by their power, or seduce by their influence;
and thus, the fundamental maxim of a republic, that it
is a government of laws, and not of men, will be silent-
ly disproved, or openly abandoned.^
§ 1608. In the next place, these considerations ac-
quire (as has been already seen) still more cogency
and force, wdien applied to questions of constitutional
law. In monarchies, the only practical resistance,
w^hich the judiciary can present, is to the usurpations
of a single department of the government, unaided, and
acting for itself. But, if the executive and legislative
departments are combined in any course of measures,
obedience to their will becomes a duty, as weW as a
necessity. Thus, even in the free government of
Great Britain, an act of parUament, combining, as it
does, the will of the crown, and of the legislature, is
absolute and omnipotent. It cannot be lawfully resist-
ed, or disobeyed. The judiciary is bound to carry it
into effect at every hazard, even though it should sub-
1 It is far from being true, that the gross misconduct of the English
Judges in many state prosecutions, while they held their offices during
the pleasure of the crown, was in compliance only with the mere will
of the monarch. On the contrary, they administered but too keenly
to popular vengeance, acting under delusions of an extraordinary na-
ture, sometimes political, sometimes religious, and sometimes arising
from temporary prejudices.
472 CONSTITUTION OF THE U. STATES. [bOOK III.
vert private rights and public liberty.^ But it is far
otherwise in a republic, like our own, with a hmited
constitution, prescribing at once the powers of the
rulers, and the rights of the citizens.^ This very cir-
cumstance would seem conclusively to show, that the in-
dependence of the judiciary is absolutely indispensable
to preserve the balance of such a constitution. In no
other way can there be any practical restraint upon the
acts of the government, or any practical enforcement of
the rights of the citizens.^ This subject has been
already examined very much at large, and needs only
to be touched in this place. No man can deny the
necessity of a judiciary to interpret the constitution
and laws, and to preserve the citizens against oppres-
sion and usurpation in civil and criminal prosecutions.
Does it not follow, that, to enable the judiciary to fulfil
its functions, it is indispensable, that the judges should
not hold their offices at the mere pleasure of those,
whose acts they are to check, and, if need be, to declare
1 See 1 Black. Comm. 9 ; V>'oodcson's Elements of Jurisprudence,
Lect. 3, p. 48.
2 1 Wilson's Law Lect. 4G0, 4G].
3 The remarks of Mr. Boudinot on this subject, in a debate in the
house of representatives, deserve insertion in this place, from his high
character for wisdom and patriotism. " It has been objected," says he,
"that, by adopting the bill before us, we expose the measure to be con-
sidered, and defeated by the judiciary of the United States, who may
adjudge it to be contrary to the constitution, and therefore void, and
not lend their aid to carry it into execution. This gives me no uneasi-
ness. I am so far from controverting this right in the judiciary, that it
is my boast, and my confidence. It leads me to greater decision on all
subjects of a constitutional nature, when I reflect, that, if from inatten-
tion, want of precision, or any other defect, I should do wrong, there is
a power in the government, which can constitutionally prevent the op-
eration of a wrong measure from affecting my constituents. I am legis-
lating for a nation, and for thousands yet unborn ; and it is the glory
of the constitution, that tjiere is a remedy for the failures even of the
legislature itself"
CH. XXXVIII.] JUDICIARY-TENURE OF OFFICE. 473
void ? Can it ])C supposed I'oi- a iiiomciit, that men
holding- their oliiccs lor the shoit period of two, or Idui-,
or even six years, will be generally found hrm enough
to resist the will of those, who appoint them, and may
remove them ?
^ 1609. The argument of those, wlo contend for a
short period of oHice of the judges, is founded upon
the necessity oi^ a conformity to the will of the people.
But the argument proceeds upon a fallacy, in suppos-
ing, that the will of the rulers, and the will of the peo-
ple are the same. Now, they not only may be, but
often actually are, in direct variance to each other. No
man in a republican government can doubt, that the
will of the people is, and ought to be, supreme. But
it is the deliberate will of the people, evinced by their
solemn acts, and not the momentary ebuUitions of
those, who act for the majority, for a day, or a month,
or a year. The constitution is the will, the deliberate
wall, of the people. They have declared under wdiat
circumstances, and in what manner it shall be amend-
ed, and altered ; and until a change is effected in the
manner prescribed, it is declared, that it shall be the
supreme law^ of the land, to which all persons, rulers,
as well as citizens, must bow in obedience. When it
is constitutionally altered, then and not until then, are
the judges at liberty to disregard its original injunc-
tions. When, therefore, the argument is pressed, that
the judges ought to be subject to the will of the peo-
ple, no one doubts the propriety of the doctrine in its
true and legitimate sense.
^ 1610. But those, who press the argument, use it
in a far broader sense. In their view, the will of the
people, as exhibited in the choice of the rulers, is to be
followed. If the rulers interpret the constitution dif-
voL. III. 60
474 CONSTITUTION OF THE U. STATES. [bOOK III.
ferently from the judges, the former are to be obeyed,
because they represent the opinions of the people ; and
therefore, the judges ought to be removable, or ap-
pointed for a short period, so as to become subject to
the will of the people, as expressed by and through
their rulers. But, is it not at once seen, that this is in
fact subverting the constitution ? Would it not make
the constitution an instrument of flexible and changea-
ble interpretation, and not a settled form of govern-
ment with fixed hmitations ? Would it not become,
instead of a supreme law for ourselves and our poster-
ity, a mere oracle of the powers of the rulers of the
day, to which implicit homage is to be paid, and
speaking at different times the most opposite com-
mands, and in the most ambiguous voices ? In short,
is not this an attempt to erect, behind the constitution,
a power unknown, and unprovided for by the constitu-
tion, and greater than itself? What become of the
limitations of the constitution, if the will of the people,
thus inofficially promulgated, forms, for the time being,
the supreme law, and the supreme exposition of the
law? If the constitution defines the powers of the
government, and points out the mode of changing
them ; and yet, the instrument is to expand in the
hands of one set of rulers, and to contract in those of
another, where is the standard? If the will of the peo-
ple is to govern in the construction of the powers of
the constitution, and that will is to be gathered at every
successive election at the polls, and not from their de-
hberate judgment, and solemn acts in ratifying the
constitution, or in amending it, what certainty can there
be in those powers ? If the constitution is to be ex-
pounded, not by its written text, but by the opinions
of the rulers for the time being, whose opinions are to
CH. XXXVIII.] JUDICIARY-TfZNURE OF OFFICi:. 475
prevail, the first, or the last ? When, therefore, it is
said, that the judges ought to be subjected to tlie will
of the people, and to conform to their interpretation of
the constitution, the practical meaning must be, that
they should be subjected to the control of the repre-
sentatives of the people in the executive and legislative
departments, and should interpret the constitution, as
the latter may, from time to lime, deem correct.
§ 1611. But it is obvious, that elections can rarely,
if ever, furnish any sufficient proofs, what is deliber-
ately the will of the people, as to any constitutional or-
legal doctrines. Representatives and rulers must be
ordinarily chosen for very different purposes; and, in
many instances, their opinions upon constitutional ques-
tions must be unknown to their constituents. The
only means known to the constitution, by which to as-
certain the will of the people upon a constitutional
question, is in the shape of an affirmative or negative
proposition by way of amendment, offered for their
adoption in the mode prescribed by the constitution.
The elections in one year may bring one party into
power ; and in the next year their opponents, embracing
opposite doctrines, may succeed ; and so alternate
success and defeat may perpetually recur in the same
districts, and in the same, or different states.
§ 1612. Surely it will not be pretended, that any
constitution, adapted to the American people, could
ever contemplate the executive and legislative depart-
ments of the government, as the ultimate depositaries
of the power to interpret the constitution ; or as the
ultimate representatives of the w^ill of the people, to
change it at pleasure. If, then, the judges were ap-
pointed for two, or four, or six years, instead of dur-
ing good behaviour, the only security, which the peo-
476 CONSTITUTION OF THE U. STATES. [bOOK III.
pie would have for a due administration of public jus-
tice, and a fu-m support of the constitution, would be,
that being dependent upon the executive for their ap-
pointment during their brief period of office, they
might, and Avould represent more fully, for the time be-
ing, the constitutional opinion of each successive exec-
utive ; and thus carry into effect his system of govern-
ment. Would this be more wise, or more safe, more
for the permanence of the constitution, or the preser-
vation of the liberties of the people, than the present
system ? Would the judiciary, then, be, in fact, an
independent co-ordinate department ? Would it pro-
tect the people against an ambitious or corrupt exec-
utive ; or restrain the legislature from acts of uncon-
stitutional authority ? ^
§ 1613. The truth is, that, even with the most se-
cure tenure of office, during good behaviour, the danger
is not, that the judges will be too firm in resisting pub-
lic opinion, and in defence of private rights or public
liberties ; but, that they will be too ready to yield them-
selves to the passions, and politics, and prejudices of
the day. In a monarchy, the judges, in the performance
1 Mr. Jefferson, during the latter years of his life, and indeed from
the time, when he hecame ])resident of the United States, was a most
strenuous advocate of the plan of maidng the judges hold their offices
for a limited term of years only, lie proposed, that their appointments
should be for/bur, or six years, renewable by the president and senate.
It is not my purpose to bring his opinions into review, or to comment on
the terms, in which they are expressed. It is impossible not to per-
ceive, that he entertained a decided hostility to the judicial department;
and that lie allowed himself in language of insinuation against tiie con-
duct of judges, which is littlo calculated to add weigiit to his opinions.
He wrote on this subject apparently with the feelings of a partisan, and
under influences, which his best friends will most regret. See 1 Jeffer-
son's Corrcsp. 65, GO; 4 Jefferson's Corresp. 74, 75, 287, 288, 289, 317,
337, 352. His earlier opinions were of a different character. See
Jefferson's Notes on Virginia, 195 ; Federalist, No, 48.
CH. xxxvTii.] jUDiciARY-TENUui: OF omci:. ^77
of their duties with uprightness and impartiality, \vill
always have the support of some of the departments of
the government, or at least of the people. In republics,
they may sometimes fnid the other departments com-
bined in hostility against the judicial ; and even the
people, for a while, under the influence of party spirit
and turl)ulent faclions, ready to abandon them to their
fiite.^ Few men possess the firmness to resist the
torrent of popular opinion ; or are content to sacrifice
present ease and public favour, in order to earn the
slow rewards of a coscientious discharge of duty ; the
sure, but distant, gratitude of the people ; and the
severe, but enlightened, award of })osterity.^
1 An objection was tnken in the Pennsylvania convention ag-ainst
the constitution of ihe United States, that the judg'es were not made
sufficiently independent, because they might hold other offices. 3 El-
liot's Debates, 300, 313, 314.
2 Mr. (now Judge) Hopkinson has treated this subject, as he has treat-
ed every other, falling within the range of his forensic or literary la-
bours, in a masterly manner. I extract the following passages from his
Defence of Mr. Justice Chase, upon his Impeachment, as equally re-
markable for truth, wisdom, and eloquence.
" The pure and upright adminstration of justice is of the utmost im-
portance to any people ; the other movements of government are not of
such universal concern. Who shall be president, or what treaties or
general statutes shall be made, occupies the attention of a few busy
politicians ; but these things touch not, or but seldom, the private inter-
ests and happiness of the great mass of the community. But the set-
tlement of private controversies, the administration of law between man
and man, the distribution ol" justice and right to the citizen in his pri-
vate business and concern, comes to every man's door, and is essential
to every man's prosperity and happiness. Hence I consider tlie judi-
ciary of our country most important among the branches of government,
and its purity anti independence of the most interesting consequence to
every man. Whilst it is honorably and fully protected from the influ-
ence of favour, or fear, from any quarter, the situation of a people can
never be very uncomfortable or unsafe. But if a judge is for ever to be
exposed to prosecutions and impeachments for his official conduct on
the mere suggestions of caprice, and to be condemned by the mere voice
of prejudice, under the specious name of common sense, can he hold
478 COXSTITUTION OF THE U. STATES. [bOOK III.
§ 1614. If passing from general reasoning, an ap-
peal is made to the lessons of experience, there is
every thing to convince us, that the judicial depart-
that firm and steady hand his high functions require ? No ; if his nerves
are of iron, they must tremble in so perilous a situation. In England
the complete independence of the judiciary has been considered, and
has been found the best and surest safeguard of true liberty, securing
a government of known and uniform laws, acting alike upon every man.
It has, however, been suggested by some of our newspaper politicians,
perhaps from a higher source, that although this independent judiciary
is very necessary in a monarchy to protect the people .rom the oppres-
sion of a court, yet that in our republican institution the same reasons
for it do not exist ; that it is indeed inconsistent with the nature of our
government, that any part or branch of it should be independent of the
people, from whom the power is derived. And, as the house of repre-
sentatives come most frequently from this great source of power, they
claim the best right of knowing and expressing its will ; and of course
the right of a controlling influence over the other branches. My doctrine
is precisely the reverse of this.
*' If I were called upon to declare, whether the independence of
judges were more essentially important in a monarchy, or a republic, I
should certainly say, in the latter, all governments require, in order to
give them firmness, stability, and character, some permanent principle ;
some settled establishment. The want of this is the great deficiency
in republican institutions ; nothing can be relied upon ; no faith can be
given, either at home or abroad, to a people, whose systems, and opera-
tions, and policy, are constantly changing with popular opinion ; if,
however, the judiciary is stable and independent; if the rule of justice
between men rests on permanent and known principles, it gives a secu-
rity and character to a country, which is absolutely necessary in its in-
tercourse with the world, and in its own internal concerns. This inde-
pendence is further requisite, as a security from oppression. History
demonstrates, from page to page, that tyranny and oppression have not
been confined to despotisms, but have been freely exercised in repub-
lics, both ancient and modern; with this diflTerence, — that in the lat-
ter, the oppression has sprung from the impulse of some sudden gust of
passion or prejudice, while, in the former, it is systematically planned
and pursued, as an ingredient and principle of the government ; the
people destroy not deliberately, and will return to reflection and justice,
if passion is not kept alive and excited by artful intrigue ; but, while
the fit is on, their devastation and cruelty is more terrible and unbound-
ed, than the most monstrous tyrant. It is for their own benefit, and to
protect them from the violence of their own passions, that it is essential
to have some firm, unshaken, independent, branch of government, able
CH. XXXVIII.] JUDICIARY -TENURE OF OFFICE. 479
ment is safe to a republic, with the tenure of office
during good behaviour ; and that justice will ordinarily
be best administered, where there is most independ-
ence. Of the state constitutions, five only out of twenty-
four have provided for any other tenure of office, than
during good behaviour ; and those adopted by the new
states admitted into the Union, since the formation of
the national government, have, with two or three
exceptions only, embraced the same permanent tenure
of ofhce.^ No one can hesitate to declare, that in the
states, where the judges hold their offices during good
behaviour, justice is administered with wisdom, mod-
eration, and firmness ; and that the public confidence
has reposed upon the judicial department, in the most
critical times, with unabated respect. If the same can
be said in regard to other states, where the judges en-
joy a less permanent tenure of office, it will not answer
the reasoning, unless it can also be shown, that the
judges have never been removed for political causes,
wholly distinct from their own merit ; and yet have
often deliberately placed themselves in opposition to
the popular opinion.^
and willing to resist their phrenzy ; if we have read of the death of
Seneca, under the ferocity of a Nero ; we have read too of the mur-
der of a Socrates, under the delusion of a republic. An independent
and firm judiciary, protected and protecting by the laws, would have
snatched the one from the fury of a despot, and preserved the other
from the madness of a people." 2 Chase's Trial, 18, 19, 20.
1 Dr. Licber's Encyclopedia Americana, Art. Constitutions of the
United States.
2 It affords me very great satisfaction to be aide to cite the opinions
of two eminent commentators on this subject, who, differing in many
other views of constitutional law, concur in upholding the necessity of
an independent judiciary in a republic. Mr. Chancellor Kent, in his
Commentaries, says :
" In monarchical governments, the independence of the judiciary is es-
sential to guard the rights of the subject from the injustice of the crown ;
but in republics it is equally salutary, in protecting the constitution and
480 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1615. The considerations above stated lead to the
conclusion, that in republics there are, in reality,
stronger reasons for an independent tenure of office
laws from the cncroacliments and the tyranny of faction. Laws, how-
ever wljolesome or necessary, are frequently the object of tennporary
aversion, and sometimes of popular resistance. It is requisite, that the
courts of justice should be able, at all times, to present a determined
countenance acrainst all licentious acts ; and, to give them the firmness
to do it, the judges ought to he confident of the security of their statiims.
Nor is an independent judiciary less useful, as a check upon the legis-
lative power, which is sometimes disposed, from the force of passion, or
the temptations of interest, to make a sacrifice of constitutional rights ;
and it is a wise and necessary principle of our government, as will be
shown, hereafter in the course of these lectures, that legislative acts are
subject to the severe scrutiny and impartial interpretation of the courts
of justice, who arc bound to regard the constitution, as the paramount
law, and the highest evidence of the will of the people." 1 Kent's Comm.
Lect. 14, p. 293, 294.
Mr. Tucker, in his Commentaries, makes the following remarks:
" The American constitutions appear to be the first, in which this
absolute independence of the judiciary has formed one of the funda-
mental principles of the government. Doctor Rutherforth considers
the judiciary, as a branch only of the executive authority ; and such, in
strictness, perhaps, it is in other countries, its province being to advise
the executive, rather tlian to act independently of it." "But, in the United
States of America, the judicial power is a distinct, separate, independ-
ent, and co-or^mofe branch of the government; expressly recognized
as such in our state bill of rights, and constitution, and dem.onstrahly
so, likewise, by the federal constitution, from which the courts of the
United States derive all their powers, in like manner, as the legislative
and executive departments derive theirs. The obligation, which the
constitution imposes upon the judiciary department, to support the con-
stitution of the United States, would be nugatory, if it were dependent
upon either of the other branches of the government, or in any manner
subject to their control, since such control might operate to the de-
struction, instead of the support, of the constitution. Nor can it escape
observation, that to require such an oath on the part of the judges, on
the one hand, and yet suppose them bound by acts of the legislature,
v^hich may violate the constitution, which they have sworn to support,
carries with it such a degree of impiety, as well as absurdity, as no man,
who pays any regard to the obligations of an oath, can bo supposed,
either to contend for, or to defend.
"This absolute independence of the judiciary, l)oth of the executive
and the legislative departments, whicli I contend is to be found, both
CH. XXXVIII.] JUDICIARY-TE.MTRi: OF OFFICE. 481
by the jiulgcs, a tenure durini^ t^ood behaviour, than
in a monarchy. Indeed^ a republic with a Hniited con-
stitution, and yet without a judiciary sufliciently inde-
in the letter, and spirit of our constitutions, is not less necessary to the
liberty and security of the citizen, and his property, in a republican {tqv-
ernment, than in a monarchy. If, in the latter, the will of the prince
may be considered, as likely to influence the conduct of judges created
occasionally, and holding their offices only during his pleasure, more
especially in cases, where a criminal prosecution may be carried on by his
orders, and supported by his influence ; in a republic, on the other hand,
the violence and malignity of party spirit, as well in the legislature, as
in the executive, requires not less the intervention of a calm, temperate,
upright, and independent judiciary, to prevent that violence and malig-
nity from exerting itself ' to crush in dust and ashes ' all opponents to
its tyrannical administration, or ambitious projects. Such an independ-
ence can never he perfectly attained, but by a constitutional tenure of
office, equally independent of the frowns and smiles of the other branch-
es of the government Judges ought, not only to be incapable of hold-
ing any other office at the same time, but even of appointment to any
but a judicial office. For the hope of favour is always more alluring,
and generally more dangerous, than the fear of oflfending. In England,
according to the principles of the common law, a judge cannot hold any
other office ; and according to the practice there for more than a cen-
tury, no instance can, I believe, be shown, where a judge has been
appointed to any other, than a judicial office, unless it be the honorary
post of privy counsellor, to which no emolument is attached. And even
this honorary distinction is seldom conferred, but upon the chief justice
of the king's bench, if I have been rightly informed. To this cause,
not less than to the tenure of their offices during good behaviour, may
we ascribe that pre-eminent integrity, which amidst surrounding cor-
ruption, beams with genuine lustre from the English courts of judica-
ture, as from the sun through surrounding clouds and mists. To emu-
late both their wisdom and integrity is an ambition, worthy of the great-
est characters in any country.
"If we consider the nature of the judicial authority, and the manner
in which it operates, we shall discover, that it cannot, of itself, oppress any
individual ; for the executive authority must lend its aid in every in-
stance, where oppression can ensue from its decisions : whilst, on the
contrary, its decisions in favour of the citizen are carried into instanta-
neous effect, by delivering him from the custody and restraint of the ex-
ecutive officer, the moment, that an acquittal is pronounced. And
herein consists one of the great excellencies of our constitution : that
no individual can be oppressed, whilst this branch of the government
remains independent, and uncorrupted : it being a necessary check
VOL. III. 61
482 CONSTITUTION OF THE U. STATES. [bOOK III.
pendent to check usurpation, to protect public liberty,
and to enforce private rights, would be as visionary and
absurd, as a society organized without any restraints
of law. It would become a democracy with unlimited
powers, exercising through its rulers a universal des-
potic sovereignty. The very theory of a balanced re-
public of restricted powers presupposes some organ-
ized means to control, and resist, any excesses of
authority. The people may, if they please, submit ail
power to their rulers for the time being ; but, then,
the government should receive its true appellation and
character. It would be a government of tyrants, elec-
tive, it is true, but still tyrants ; and it would become
the more fierce, vindictive, and sanguinary, because
it would perpetually generate factions in its own bosom,
who could succeed only by the ruin of their enemies.
It would be alternately characterized, as a reign of
terror, and a reign of imbecillity. It would be as cor-
upon the encroachments, or usurpations of power, by either of the
otlier."
"That absolute independence of the judiciary, for which we contend,
is not, then, incompatible with the strictest responsibility ; (for a judge
is no more exempt from it, than any other servant of the people, ac-
cording to the true principles of the constitution ;) but such an inde-
pendence of the other co-ordinate branches of the government, as seems
absolutely necessary to secure to them the free exercise of their consti-
tutional functions, witliout the hope of pleasing, or the fear of offending-.
And, as from the natural feebleness of tlie judiciary, it is in continual
jeopardy of being overpowered, awed, or influenced by its co-ordinate
branches, who have the custody of the purse and sword of the confed-
eracy ; and as nothing can contribute so much to its firmness and inde-
pendence, as permanency in office, this quality, therefore, may be justly
regarded, as an indispensable ingredient in its constitution ; and in great
measure, as the citadel of the public justice, and the public security."
1 Tuck. Black. Comm. App. 354, 35G to 3{i0.
There is also a very temperate, and, at the same time, a very satisfac-
tory elucidation of the same subject, in Mr. Rawle's work on tiie Consti-
tution, (ch. 30.) It would be cheerfully extracted, if this note had not
already been extended to an inconvenient length.
CH. XXXVIII.] JlJDiCrARY-TENURE OF OFFICE. 483
nipt, as it would be dan.2;erous. It would form anoth-
er model of that proiligatc and bloody democracy,
which, at one time, in the French revolution, darkened
by its deeds the fortunes of France, and left to man-
kind the appalling lesson, that virtue, and religion,
genius, and learning, the authority of wisdom, and the
appeals of innocence, are unheard and unfelt in the
frenzy of popular excitement ; and, that the worst
crimes may be sanctioned, and the most desolating
principles inculcated, under the banners, and in the
name of liberty. In human governments, there are
but two controlling powers ; the power of arms, and
the power of laws. If the latter are not enforced by a
judiciary above all fear, and above all reproach, the
former must prevail ; and thus lead to the triumph of
military over civil institutions. The framers of the
constitution, with profound wisdom, laid the corner
stone of our nadonal republic in the permanent inde-
pendence of the judicial establishment. Upon this
point their vote was un-Animous.^ They adopted the
results of an enlightened experience. They were not
seduced by the dreams of human perfection into the
belief, that all power might be safely left to the un-
checked operadon of the private ambition, or personal
virtue of rulers. Nor, on the other hand, were they so
lost to a just estimate of human concerns, as not to
feel, that confidence must be reposed somewhere ;
if either efficiency, or safety are to be consulted in
the plan of government. Having provided amply for
the legislative and executive authorities, they established
a balance-wheel, which, by its independent structure,
should adjust the irregularities, and check the excesses
of the occasional movements of the system.
1 Jom-nal of Convention, 100, 188.
484 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1616. In the convention a proposition was offered
to make the judges removeable by the president, upon
the appKcation of the senate and house of representa-
tives ; but it received the support of a single state
only.'
§ 1617. This proposition doubtless owed its origin
to the clause in the act of parhament, (13 Will. 3 ch.
2,) making it lawful for the king to remove the judges
on the address of both houses of parhament, notwith-
standing the tenure of their offices during good behav-
iour, established by the same act.^ But a moment's
reflection will teach us, that there is no just analogy in
the cases. The object of the act of parliament was to
secure the judges from removal at the mere pleasure
of the crown; but not to render them independ-
ent of the action of parhament. By the theory of
the British constitution, every act of parliament is
supreme and omnipotent. It may change the succes-
sion to the crown ; and even the very fundamentals of
the constitution. It w^ould have been absurd, there-
fore, to have exempted the judges alone from the gen-
eral jurisdiction of this supreme authority in the realm.
The clause was not introduced into the act, for the
purpose of conferring the power on parhament, for it
could not be taken away, or restricted ; but simply to
recognize it, as a quahfication of the tenure of oflice ;
so that the judges should have no right to complain of
any breach of an implied contract with them, and the
crown should not be deprived of the means to remove
an unfit judge, whenever parliament should in their
discretion signify their assent. Besides ; in England
the judges are not, and cannot be, called upon to de-
1 Journ. of Convention, 296. ^ i Black. Comni. 266.
CH. XXXVIII.] JUDICIARY-TENURE OF OFFICE. 485
cide any constitutional questions ; and tlicrctbrc Uicrc
was no necessity to place them, and indeed there
would have been an impropriety in placing them, even
if it had been possible, (which it clearly was not) in a
situation, in which they would not have been under
the control of parliament.
^ 1618. Far different is the situation of the people
of the United Statics. They have chosen to estabUsh
a constitution of government, with limited powers and
prerogatives, over which neither the executive, nor
the legislature, have any power, either of alteration or
control. It is to all the departments equally a supreme,
fundamental, unchangeable law, which all must obey,
and none are at liberty to disregard. The main secu-
rity, relied on to check any irregular, or unconstitutional
measure, either of the executive, or the legislative
department, was (as we have seen) the judiciary. To
have made the judges, therefore, removable, at the
pleasure of the president and congress, would have
been a virtual surrender to them of the custody and
appointment of the guardians of the constitudon. It
would have been placing the keys of the citadel in the
possession of those, against whose assaults the people
were most strenuously endeavouring to guard them-
selves. It would be holding out a temptation to the
president and congress, whenever they were resisted
in any of their measures, to secure a perfect irrespon-
sibility by removing those judges from office, who
should dare to oppose their will. In short, in every
violent political commotion or change, the judges would
be removed from office, exactly as the lord chancellor
in England now' is, in order, that a perfect harmony
might be established between the operations of all the
departments of government. Such a power would have
486 CONSTITUTION OF THE U. STATES. [bOOK III.
been a signal proof of a solicitude to erect defences
round the constitution, for the sole purpose of surren-
dering them into the possession of those, whose acts
they were intended to guard against. Under such cir-
cumstances, it might well have been asked, where
could resort be had to redress grievances, or to over-
throw usurpations ? Qiiis custodiet cusiodes ?
§ 1619. A proposition of a more imposing nature
was to authorize a removal of judges for inability to
discharge the duties of their offices. But all consider-
ate persons will readily perceive, that such a provision
would either not be practised upon, or would be more
liable to abuse, than calculated to answer any good
purpose. The mensuration of the faculties of the mind
has no place in the catalogue of any known art or
science. An attempt to fix the boundary between the
region of ability and inability would much often er give
rise to personal, or party attachments and hostilities, than
advance the interests of justice, or the public gcod.-^
And instances of absolute imbecility would be too rare
to justify the introduction of so dangerous a provision.
^ 1620. In order to avoid investigations of this sort,
which must for ever be vague and unsatisfactory, some
persons have been disposed to think, that a limitation
of age should be assumed as a criterion of inability ; so
that there should be a constitutional removal from office,
when the judge should attain a certain age. Some of the
state const'itutions have adopted such a limitation.
Thus, in New -York, sixty years of age is a disqualifi-
cation for the office of judge ; and in some other states
the period is prolonged to seventy. The value of these
1 The Federalist, No. 7;). See Rawlc on Constitution, cli. :10, p. ^78,
279.
CH. XXXVIII.] JUDICIARY-TENURE OF OFFICE. 487
provisions has never, as yet, been satisfactorily establish-
ed by the experience of any state. That they have
worked mischievously in some cases is matter of public
notoriety. The Federalist has remarked, in reference
to the Hmitation in New-York,^ " there are few at pres-
ent, who do not disapprove of this provision. There is
no station, in which it is less proper, than that of a judge.
The deliberating and comparing faculties generally pre-
serve their strength much beyond that period in men,
who survive it. And when, in addition to this circum-
stance, we consider how few there are, who outhve the
season of intellectual vigour, and how improbable it is,
that any considerable portion of the bench, whether
more or less numerous, should be in such a situation at
the same time, we shall be ready to conclude, that lim-
itations of this sort have Htde to recom.mend them. In a
1 The limitation of New-York struck from its bench one of the greatest
names, that ever adorned it, in the full possession of his extraordinary
powers. I refer to Mr. Chancellor Kent, to whom the jurisprudence of
New-York owes a debt of gratitude, that can never be repaid. He is at
once the compeer of Hardwicke and Mansfield. Since his removal
from the bench, he has composed his admirable Commentaries,* a work,
which will survive, as an honor to the country, long after all the perish-
able fabrics of our day shall be buried in oblivion. If he had not thus
secured an enviable fame since his retirement, the public might have
had cause to regret, that New- York sliould have chosen to disfranchise
her best citizens at the time, when their services were most important,
and their judgments most mature.
Even the age of seventy would have excluded from public service
some of the greatest minds which have belonged to our country. At
eighty, said Mr. Jefferson, Franklin was the ornament of human nature.
At eighty. Lord Mansfield still possessed in vigor his almost unrivalled
powers. If seventy had been the limitation in the constitution of the
United States, the nation Avould have lost seven years of as brilliant
judicial labors, as have ever adorned the annals of the jurisprudence of
any country.
* While the present work was pai3sing throuirh the press, a second edition has been published
by the learned author ; and it has been greatly improved by his severe, acute, and accurate
judgment.
488 CONSTITUTION OF THE U. STATES. [bOOK III.
republic, where fortunes are not affluent, and pensions
not expedient, the dismission of men from stations, in
which they have served their country long and useful-
ly, and on which they depend for subsistence, and from
which it will be too late to resort to any other occupa-
tion for a hvelihood, ou.2;ht to have some better apology
to humanity, than is to be found in the imaginary danger
of a superannuated bench." ^
§ 1621. It is observable, that the consdtution has de-
clared, that the judges of the inferior courts, as well as of
the Supreme Court, of the United States, shall hold their
offices during good behaviour. In this respect there is
a marked contrast between the English government
4nd our own. In England the tenure is exclusively con-
fined to the judges of the superior courts, and does not
(as we have already seen) even embrace all of these. In
fact, a great portion of all the civil and criminal business
of the whole kingdom is performed by persons delegat-
ed, pro hac vice, for this purpose under commissions
issued periodically for a single circuit.^ It is true, that
it is, and for a long period has been, ordinarily adminis-
tered by the judges of the courts of King's Bench,
Common Pleas, and Exchequer ; but it is not so merely
virtute officii, but under special commissions investing
them from time to time with this authority in conjunc-
tion with other persons named in the commission.
Such are the commissions of oyer and terminer, of
assize, of gaol delivery, and of nisi prius, under which
all civil and criminal trials of matters of fact are had at
the circuits, and in the metropolis.^ By the consdtu-
1 The Federalist, No. 79. See Rawle on Const, ch. 30, p. 278, 279.
2 1 Wilson's Law Lect. 463, 464 ; 2 Wilson's Law Lect. 258, 259.
3 See 3 Black. Comm. 58, 59, 60.
CH. XXXVIII.J JUDICIARY-TENURE OF OFFICE. 489
tion of the United States all criminal and civil jurisdic-
tion must be exclusively confided to judges holding
their office during good behaviour ; and though con-
gress may from time to time distribute the jurisdiction
among such inferior courts, as it may create from time
to time, and withdraw it at their pleasure, it is not com-
petent for them to confer it upon temporary judges, or
to confide it by special commission. Even if the Eng-
hsh system be well adapted to the wants of the nation,
and secure a wise and beneficent administration of jus-
tice in the realm, as it doubtless does ; still it is obvious,
that, in our popular government, it would be quite too
great a power, to trust the whole administration of civil
and criminal justice to commissioners, appointed at the
pleasure of the president. To the constitution of the
United States, and to those, who enjoy its advantages,
no judges are known, but such, as hold their offices dur-
ing good behaviour.^
1 1 Wilson's Law Lect. 464, 465. — Mr. Tucker has spoken with a
truly national pride and feeling on the subject of the national judiciary,
in comparinor it with that of England. " Whatever then has been said,"
says he, " by Baron Montesquieu, De Lolme, or Judge Blackstone, or
any other writer, on the security derived to the subject from the inde-
pendence of the judiciary of Great Britain, will apply at least as forcibly
to that of the United States. We may g-o still further. In England the
judiciary may be overwhelmed by a combination between the executive
and the legislature. In America, (according to the true theory of our
constitution,) it is rendered absolutely independent of, and superior to
the attempts of both, to control, or crush it: First, by the tenure of
office, which is during good behaviour; these words (by a long train of
decisions in England, even as far back, as the reign of Edward the
Third) in all commissions and grants, public or private, importing an
office, or estate, for the life of the grantee, determinable only by his
death, or breach of good behaviour. Secondly, by the independence of
the judges, in respect to their salaries, which cannot be diminished.
Thirdly, by the letter of the constitution, which dehnes and limits the
powers of the several co-ordinate branches of the government ; and the
spirit of it, which forbids any attempt on the part of either to subvert the
VOL. III. 62
490 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1622. The next clause of the constitution declares,
that the judges of the supreme and inferior courts
" shall, at stated times, receive for their services a com-
" pensation, ^vhich shall not be diminished during their
" continuance in office." Without this provision the
other, as to the tenure of office, would have been utterly
nugatory, and indeed a mere mockery. The Federal-
ist has here also spoken in language so direct and con-
vincing, that it supercedes all other argument.
^ 1623. "Next to permanency in office, nothing can
contribute more to the independence of the judges,
than a fixed provision for their support. The remark
made in relation to the president is equally applicable
here. In the general course of human nature, a power
ovei' a man's subsistence amounts to a power over his
will And we can never hope to see reahzed in prac-
tice the complete separation of the judicial from the
legislative power, in any system, which leaves the
former dependent for pecuniary resource on the occa-
sional grants of the latter. The enhghtened friends to
good government in every state have seen cause to
lament the want of precise and explicit precautions in
the state constitutions on this head. Some of these
indeed have declared, that permanent salaries should
be established for the judges ; but the experiment has
in some instances shown, that such expressions are not
sufficiently definite to preclude legislative evasions.
Something still more positive and unequivocal has been
constitutional independence of the others. Lastly, by that uncontrolla-
ble authority in all cases of litigation, criminal or civil, which from the
very nature of things is exclusively vested in this department, and ex-
tends to every supposable case, which can affect the life, liberty, or
property of the citizens of America, under the authority of the federal
constitution, and laws, except in the case of an impeachment." 1 1 uck.
Black. Comm. App, 353, 354.
CH. XXXVIII.J JUDICIARY COMPENSATION. 491
evinced to be requisite. The plan of the convention
accordingly has provided, that the judges of the United
States " shall at stated times receive for their services a
compensation, which shall not be diminished during
their continuance in office."
^ 1 624. " This, all circumstances considered, is the
most eligible provision, that could have been devised.
It will readily be understood, that the fluctuations in
the value of money, and in the state of society, render-
ed a fixed rate of compensation in the constitution inad-
missible. What might be extravagant to-day, might in
half a century become penurious and inadequate. It
w^as therefore necessary to leave it to the discretion of
the legislature to vary its provisions in conformity to
the variations in circumstances ; yet under such re-
strictions as to put it out of the power of that body to
change the condition of the individual for the worse. A
man may then be sure of the ground upon which he
stands; and can never be deterred from his duty by the
apprehension of being placed in a less eligible situation.
The clause, which has been quoted, combines both ad-
vantages. The salaries of judicial offices may from
time to time be altered, as occasion shall require ; yet
so as never to lessen the allowance, with which any par-
ticular judge comes into office, in respect to him. It
will be observed, that a difference has been made by
the convention between the compensation of the presi-
dent and of the judges. That of the former can neither
be increased, nor diminished. That of the latter can
only not be diminished. This probably arose from the
difference in the duration of the respective oflices. As
the president is to be elected for no more than four
years, it can rarely happen, that an adequate salary,
fixed at the commencement of that period, will not
492 CONSTITUTION OF THE U. STATES. [bOOK III.
continue to be such to its end. But with regard to the
judges, who, if they behave properly, will be secured
in their places for hfe, it may well happen, especially in
the early stages of the government, that a stipend,
which would be very sufficient at their first appoint-
ment, would become too small in the progress of their
service.
§ 1625. " This provision for the support of the judges
bears every mark of prudence and efficacy ; and it may
be safely affirmed, that together with the permanent
tenure of their offices, it affords a better prospect of
their independence, than is discoverable in the consti-
tutions of any of the states, in regard to their own
judges. The precautions for their responsibility are
comprised in the article respecting impeachments.
They are liable to be impeached for maleconduct by
the house of representatives, and tried by the senate ;
and, if convicted, may be dismissed from office, and
disqualified for holding any other. This is the only
provision on the point, which is consistent with the
necessary independence of the judicial character ; and
is the only one, which we find in our own constitution,
in respect to our own judges." ^
J Mr. Chancellor Kent has written a few brief but preirnant sen-
tences on this subject; and he has praised the constitution of the United
States, as in this respect an improvement upon all previously existing
constitutions, in this, or in any other country. 1 Kent's Comm.Lect. 14,
p. 270. In his second edition, (Id. p. 294,) he has in some measure limit-
ed the generality of expression of the first, by stating, that by the English
act of settlement, of 12 &- 13 Will. 3, it was declared, that the salaries
of the judges should he ascertained and established; and by the statute
1 George 3, the salaries of the judges were absolutely secured to them,
during the continuance of their commissions.^ Still there remains a
striking difference in favour of the American constitution, inasmuch as
in England the compensation, as well as the tenure of office, is within
* See 1 Black. Coram. 267, 268.
CH. XXXVIIl.] JUDICIARY COMPENSATION. 493
§ 1626. Mr. Justice Wilson also has, with mnni-
fest satisfaction, referred to the provision, as giving a
decided superiority to the national judges over those
of England. "The laws," says he, '*in England,
respecting the independency of the judges, have been
construed, as confined to those in the superior courts.
In the United States, this independency extends to
judges in courts inferior, as well as supreme. This
independency reaches equally their salaries, and their
commissions. In England, the judges of the superior
courts do not now, as they did formerly, hold their
commissions and their salaries at the pleasure of the
crown ; but they still hold them at the pleasure of
the parliament: the judicial subsists, and may be
blown to annihilation, by the breath of the legislative
department. In the United States, the judges stand
upon the sure basis of the constitution : the judicial
department is independent of the department of
legislature. No act of congress can shake their com-
missions, or reduce their salaries. ' The judges, both
of the supreme and inferior courts, shall hold their
offices during good behaviour, and shall, at stated
times, receive for their services a compensation,
which shall not be diminished, during their continu-
ance in office.' It is not lawful for the president of
the United States to remove them on the address of
the two houses of congress. They may be removed,
however, as they ought to be, on conviction of high
crimes and misdemeanours. The judges of the United
States stand on a much more independent footing,
than that on which the judges of England stand, with
the reach of the repealing- power of parliament ; but in the national gov-
ernment it constitutes a part of the supreme fundamental law, unaltera-
ble, except by an amendment of the the constitution.
494 CONSTITUTION OF THE U. STATES. [bOOK III.
with regard to jurisdiction, as well as with regard to
commissions and salaries. In many cases, the juris-
diction of the judges of the United States is ascer-
tained, and secured by the constitution. As to these,
the power of the judicial is co-ordinate with that of
the legislative department. As to the other cases, by
the necessary result of the constitution, the authority
of the former is paramount to the authority of the
latter."
§ 1627. It would be a matter of general congratu-
lation, if this language had been completely borne out
by the perusal of our juridical annals. But, unfortu-
nately, a measure was adopted in 1802 under the
auspices of president Jefferson,^ which, if its constitu-
tionality can be successfully vindicated, prostrates in
the dust the independence of all inferior judges, both
as to the tenure of their office, and their compensation
for services, and leaves the constitution a miserable
and vain delusion. In the year 1801, congress passed
an act^ reorganizing the judiciary, and authorizing the
appointment of sixteen new judges, with suitable sala-
ries, to hold the circuit courts of the United States, in
the different circuits created by the act. Under this
act the circuit judges received their appointments,
and performed the duties of their offices, until the year
1802, when the courts, established by the act, were
abohshed by a general repeal of it by congress, with-
out in the slightest manner providing for the payment
of the salaries of the judges, or for any continuation
of their offices.^ The result of this act, therefore, is
1 See Mr. Jefferson's Message, Djc. 8. 1801 ; 4 Wait's State Pa-
pers, p. 332.
2 Act of 1801, ch. 75.
3 Act of 8th of March, 1802, ch. 8.
CH. XXXVIII.] JUDICIARY — COMPENSATION. 495
(so far as it is a precedent,) that, notwithstanding
the constitutional tenure of oflice of the judges of the
inferior courts is during good behaviour, congress
may, at any time, by a mere act of legislation, deprive
them of their offices at pleasure, and with it take
aw^ay their whole title to their salaries.^ How this
can be reconciled with the terms, or the intent of the
constitution, is more, than any ingenuity of argument
has ever, as yet, been able to demonstrate.^ The
system fell, because it was unpopular with those, who
were then in possession of power ; and the victims
have hitherto remained without any indemnity from
the justice of the government.
§ 1628. Upon this subject a learned commentator ^
has spoken with a manliness and freedom, worthy of
himself and of his country. To those, who are alive
to the just interpretation of the constitution ; those,
who, on the one side, are anxious to guard it against
usurpations of power, injurious to the states ; and
those, who, on the other side, are equally anxious to
1 See Sergeant on Const, ch. 30, [ch. 32.]
2 The act gave rise to one of the most animated debates, to bo found
in the annals of congress ; and was resisted by a power of argument and
eloquence, which has never been surpassed. These debates were col-
lected, and printed in a volume at Albany in 1802 ; and are worthy of the
most deliberate perusal of every constitutional lawyer. The act may be
asserted, without fear of contradiction, to have been against the opinion
of a great majority of all the ablest lawyers at the time ; and probably
now, when the passions of the day have subsided, few lawyers will be
found to maintain the constitutionality of the act. No one can doubt
the perfect authority of congress to remodel their courts, or to confer, or
withdraw their jurisdiction at their pleasure. But the question is, wheth-
er they can deprive them of the tenure of their office, and their salaries,
after they have once become constitutionally vested in them. See 3
Tuck. Black. Coram. App. 22 to 25.
3 Mr. Tucker, 1 Tuck. Black. Comm. App. 3G0 ; 3 Tuck. Black.
Comm. App. 22 to 25.
496 CONSTITUTION OF THE U. STATES. [bOOK III.
prevent a prostration of any of its great departments
to the authority of the others ; the language can never
be unseasonable, either for admonition or instruction,
to warn us of the facility, with which public opinion
may be persuaded to yield up some of the barriers of
the constitution under temporary influences, and to
teach us the duty of an unsleeping vigilance to pro-
tect that branch, which, though weak in its powers, is
yet the guardian of the rights and liberties of the peo-
ple. "It was supposed," says the learned author,
" that there could not be a doubt, that those tribu-
nals, in which justice is to be dispensed, according to
the constitution and laws of the confederacy; in
wdiich life, liberty, and property are to be decided
upon ; in which questions might arise as to the con-
stitutional powers of the executive, or the constitu-
tional obligation of an act of the legislature ; and in
the decision of which the judges might find themselves
constrained by duty, and by their oaths, to pronounce
against the authority of either, should be stable and
permanent ; and not dependent upon the will of the
executive or legislature, or both, for their existence.
That without this degree of permanence, the tenure
of office during good behaviour could not secure to
that department the necessary firmness to meet un-
shaken every question, and to decide, as justice and
the constitution should dictate, without regard to con-
sequences. These considerations induced an opinion,
which, it was presumed, was general, if not universal,
that the power vested in congress to erect, from time
to time, tribunals inferior to the supreme court, did
not authorize them, at pleasure, to demohsh them.
Being built upon the rock of the constitution, their
foundations were supposed to partake of its perma-
CH. XXXVIir.] JUDICIARY COMPENSATION. 497
nency, and to be equally incapable of being shaken
by the other branches of the government. But a dif-
ferent construction of the constitution has lately pre-
vailed. It has been determined, that a power to ordain
and establish from dme to time, carries with it a
discretionary power to discontinue, or demolish.
That although the tenure of ofhce be during good
behaviour, this does not prevent the separation of the
office from the officer, by putting down the office ;
but only secures to the officer his station, upon the
terms of good behaviour, so long as the office itself
remains. Painful indeed is the remark, that this in-
terpretation seems calculated to subvert one of the
fundamental pillars of free governments, and to have
laid the foundation of one of the most dangerous po-
litical schisms, that has ever happened in the United
States of America." ^
1 Whether justices of the peace, appointed under the authority of the
United States, are inferior courts, within the sense of the constitution,
has been in former times a matter of some controversey, but has never
been decided by the Supreme Court. They are doubtless officers of the
government of the United States ; but their duties are partly judicial, and
partly executive or ministerial * In these respects they have been sup-
posed to be like commissioners of excise, of bankruptcy, commissioners
to take depositions, and commissioners under treaties. And it has been
said, that the constitution, in speaking of courts and judges, means those,
who exercise all the regular and permanent duties, which belong to a
court in the ordinary popular signification of the terms.f
At present the courts of the United States, organized under the con-
stitution, consist of district courts, (one of which at least is established
in every state in the Union,) of circuit courts, and of a Supreme Court,
the latter being composed of seven judges. The judiciary act of 1789,
eh. 20; and the judiciary act of 1802, ch. '31, are those, which make
the general provisions for the establishments of these courts, and for
their jurisdiction, original and appellate.^ Mr. Chancellor Kent has
given a brief but accurate account of the (ut .i tiiiiilti on , of the courts of
the United States. 1 Kent's Comm. Leci^l4, p. 279 to 285. [2d edit
p. 298 to 305.]
+ fVise V. mthers, 3 Craiich's R. 33G ; S. C. 1 Peters's Cond. R. 552.
t Sergeant on Const. (2d edit.) ch. 32, p. 377, 378.
VOL. III. 63
498 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1629. It is almost unnecessary to add, that, al-
thoudi the constitution has, with so sedulous a care,
endeavoured to guard 'rfhe judicial department from
the overwhelming influence or power of the other co-
ordinate departments of the government, it has not
conferred upon them any inviolability, or irresponsi-
bility for an abuse of their authority. On the contrary
for any corrupt violation or omission of the high trusts
confided to the judges, they are liable to be impeach-
ed, (as w^e have already seen,) and upon conviction
removed from office. Thus, on the one hand, a pure
and independent administration of public justice is
amply provided for ; and, on the other hand, an
urgent responsibility secured for fidehty to the peo-
ple.
^ 1630. The judges of the inferior courts, spoken of
in the constitution, do not include the judges of courts
appointed in the territories of the United States under
the authority, given to congress, to regulate the territo-
ries of the United States. The courts of the territories
are not constitutional courts, in which the judicial power
conferred by the constitution on the general govern-
ment, can be deposited. They are legislative courts,
created in virtue of the general sovereignty, which ex-
ists in the national government over its territories. The
jurisdiction, with which they are invested, is not a part
of the judicial power, which is defined in the third
article of the constitution ; but arises from the same
general sovereignty. In legislating for them, congress
exercises the combined powers of the general, and of a
state government. Congress may, therefore, rightfully
limit the tenure of office of the judges of the terri-
torial courts, as well as their jurisdiction; and it
CH. XXXVIII.] JUDICIARY JURISDICTION. 499
has been accordingly limited to ii sliort period of
years.^
^ 1631. Tlie second section of the third article con-
tains an exposition of the jurisdiction appertaining to
the judicial power of the national government. The
first clause is as follows: "The judicial power shall
" extend to all cases in law and equity arising under
"this constitution, the laws of the United States, and
" treaties made, or which shall be made, under their
" authority ; to all cases affecting ambassadors, other
"public ministers, and consuls; to all cases of admi-
"ralty and maritime jurisdiction; to controversies, to
" which the United States shall be a party ; to contro-
" versies between two or more states ; between a state
"and citizens of another state; between citizens of
" different states ; between citizens of the same state,
" claiming lands under grants of different states ; and
"between a state, or the citizens thereof, and foreign
"states, citizens, or subjects."^
^ 1632. Such is the judicial power, which the con-
stitution has deemed essential, in order to follow out
one of its great objects stated in the preamble, " to
establish justice." Mr. Chief Justice Jay, in his very
1 The American Insurance Company v. Canter, 1 Peters's Sup. R.
511, 546.
2 It has been very correctly remarked by Mr. Justice Iredell, that
"the judicial power of the United States is of a peculiar kind. It is,
indeed, commensurate with the ordinary legislative and executive pow-
ers of the genei-al government, and the powers, which concern treaties.
But it also goes further. When certain parties are concerned, although
the subject in controversy does not relate to any special objects of au-
thority of the general government, wherein the separate sovereignties
of the separate states are blended in one common mass of supremacy;
yet tlie general government lias a judicial authority in regard to sucli
subjects of controversy ; and the legislature of the United States may
pass all laws necessary to give such judicial authority its proper effect."
Chisholm V. Gcoriria, 2 Dall. j:33, 4'M ; S. C. 2 Peters's Cond. R. G41.
500 CONSTITUTION OF THE U. STATES. [bOOK III.
able opinion, in Chisholm v. The State of Georgia,^ has
drawn up a summary of the more general leasoning, on
which each of these delegations of power is founded.
" It may be asked," said he, " what is the precise sense
and latitude, in w hich the words ' to establish justice,^
as here used, are to be understood ? The answer to
this question will result from the provisions made in the
constitution on this head. They are specified in the
second section of the third article, where it is ordained,
that the judicial power of the United States shall ex-
tend to ten descriptions of cases, viz. 1. To all cases
arising under this consdtution ; because the meaning,
construction, and operation of a compact ought always
to be ascertained by all the pardes, not by authority de-
rived only from one of them. 2. To all cases arising
under the laws of the United States; because, as such
laws, consdtutionally made, are obligatory on each state,
the measure of obligadon and obedience ought not to
be decided and fixed by the party, from whom they
are due, but by a tribunal deriving authority from both
the parties. 3. To all cases arising under treades
made by their authority ; because, as treaties are com-
pacts made by, and obligatory on, the whole nation,
their operaUon ought not to be affected, or regulated by
the local laws, or courts of a part of the nation. 4. To
all cases affecting ambassadors, or other public ministers,
and consuls ; because, as these arc officers of foreign
nations, whom this nation are bound to protect, and
treat according to the laws of nations, cases affecting
them ought only to be cognizable by national author-
ity. 5. To all cases of admiralty and maritime juris-
diction ; because, as the seas are the joint property
' 2 Dall. R. 410, 475 ; S. C. 2 Peters'^ Coml. R. ^35,671.
CH. XXXVIII.] JUDICIARY JURISDICTJON. 501
of nations, whose right and privileges relative thereto,
are regulated by the law of nations and treaties, such
cases necessarily belong to national jurisdiction. 6. To
controversies, to which the United States shall be a
party ; because in cases, in which the whole people are
mterested, it Avould not be equal, or wise, to let any
one state decide, and measure out the justice due to
others. 7. To controversies between two or more
states; because domestic tranquillity requires, that
the contentions of states should be peaceably termin-
ated by a common judicatory ; and, because, in a free
country, justice ought not to depend on the idll of
either of the Htigants. 8. To controversies between
a state and citizens of another state ; because, in case
a state (that is, all the citizens of it) has demands
against some citizens of another state, it is better,
that she should prosecute their demands in a national
court, than in a court of the state, to which those
citizens belong ; the danger of irritation and crimina-
tions, arising from apprehensions and suspicions of
partiality, being thereby obviated. Because, in cases,
where some citizens of one state have demands
against all the citizens of another state, the cause of
liberty and the rights of men forbid, that the latter
should be the sole judges of the justice due to the
latter ; and true republican government requires, that
free and equal citizens should have free, fair, and
equal justice. 9. To controversies between citizens
of the same state, claiming lands under grants of dif-
ferent states ; because, as the rights of the two states
to grant the land are drawn into question, neither of
the two states ought to decide the controversy. 10. To
controversies between a state, or the citizens thereof,
and foreign states, citizens, or subjects ; because, as
502 CONSTITUTION OF THE U. STATES. [bOOK III.
every nation is responsible for the conduct of its
citizens towards other nations, all questions touching
the justice due to foreign nations, or people, ought to
be ascertained by, and depend on, national authority.
Even this cursory view of the judicial powers of the
United States leaves the mind strongly impressed
with the importance of them to the preservation of
the tranquillity, the equal sovereignty, and the equal
rights of the people."
§ 1633. This opinion contains a clear, and, as far
as it goes, an exact outhne ; but it will be necessary
to examine separately every portion of the jurisdic-
tion here given, in order that a more full and compre-
hensive understanding of all the reasons, on which it
is founded, may be attained. And I am much mis-
taken, if such an examination will not display in a
more striking light the profound wisdom and policy,
Avith which this part of the constitution was framed.
§ 1634. And first, the judicial power extends to all
cases in law and equity, arising under the constitu-
tion, the laws, and the treaties of the United States.^
And by cases in this clause we are to understand crim-
inal, as well as civil cases.^
^ 1635. The propriety of the delegation of jurisdic-
tion, in " cases arising under the constitution," rests
on the obvious consideration, that there ought always
to be some constitutional method of giving effect to
1 In the first draft of the constitution the clause Avas, " the jurisdiction
of the Supreme Court shall extend to all cases arising under tlie laws
passed by the legislature of the United States ; " the otlier words, " the
constitution," and " treaties," were afterwards added without any appar-
ent objection. Journal of Convention, 22(), 297, 21)8.
2 1 Tucker's Black. Comm. App. 420, 421 ; Cohens v- yirginia, 6
Wheat. R. 399 ; Rawlc on Const, ch. 24, p. 22G.
CH. XXXVIII.] JUDICIARY JUKISDICTIOX. 503
constitutional provisions.^ What, for instance, would
avail restrictions on the authority of the state legisla-
tures, without some constitutional mode of enforcing
the observance of them?^ The states are by the
1 Cohc7is V. I'irginia, G Wheat. R. 415 ; Id. 402 to 404, ante, Vol. I.
§ 2GG, 2(;7.
2 Mr. Madison, in the Virn^inia Resolutions and Report, January, 1800,
says, that " cases arisintr under the constitution," in the sense of this
clause, are of two descriptions. One of these comprehends the cases
growing out of the restrictions on the legislative power of the states,
such as emitting bills of credit, making any thing but gold and silver a
tender in payment of debts. "Should this prohibition be violated," says
he, " and a suit between citizens of the same state be the consequence,
this would be a case arising under the constitution before the judicial
power of the United States. A second description comprehends suits
between citizens and foreigners, or citizens of different states, to be de-
cided according to the state or foreign laws ; but submitted by the con-
stitution to the judicial power of the United States ; the judicial power
being, in several instances, extended beyond the legislative power of
the United States." [p. 28.] Mr. Tucker in his Commentaries uses
the following language : " The judicial power of the federal government
extends to all cases in law and equity arising under the constitution.
Now, the powers granted to the federal government, or prohibited to
the states, being all enumerated, the cases arising under the coiistituiion
can only be such, as arise out of some enumerated power delegated to
the federal government, or prohibited to those of the several states.
These general words include what is compreliended in the next clause,
viz. cases arising under the laws of the United States. But, as contra-
distinguished from til at clause, it comprehends some cases afterwards
enumerated; for example, controversies between two or more states;
between a state and foreign states ; between citizens of the same state
claiming lands under grants of different states ; all which may arise
under tiie constitution, and not under any law of the United States.
Many other cases might be enumerated, which would fidl strictly under
this clause, and no other. As, if a citizen of one state should be denied
the privileges of a citizen in another ; so, if a person held to service or
labour in one state, should escape into another and obtain protection
there, as a free man ; so, if a state should coin money, and declare the
same to be a legal tender in payment of debt, the validity of such a ten-
der, if made, would fall within the meaning of this clause. So also, if
a state should, without the consent of congress, lay any duty upon goods
imported, the question, as to the validity of such an act, if disputed,
would come within the meaning of this clause, and not of any other.
504 CONSTITUTION OF THE U. STATES. [bOOK III.
constitution prohibited from doing a variety of things ;
some of which are incompatible with the interests of
the Union ; others with its peace and safety ; others
with the principles of good government. The impo-
sition of duties on imported articles, the declaration
of war, and the emission of paper money, are exam-
ples of each kind. No man of sense will beheve, that
such prohibitions would be scrupulously regarded,
without some effectual power in the government to
restrain, or correct the infractions of them.^ The
power must be either a direct negative on the state
laws, or an authority in the national courts to overrule
such, as shall manifestly be in contravention to the
constitution. The latter course was thought by the
convention to be preferable to the former ; and it is,
without question, by far the most acceptable to the
states.^
^ 1636. The same reasoning applies wdth equal
force to " cases arising under the laws of the United
States." In fact, the necessity of uniformity in the
interpretation of these laws would of itself settle
every doubt, that could be raised on the subject.
" Thirteen independent courts of final jurisdiction
(says the Federalist) over the same causes is a
In all these cases equitable circumstances may arise, the cognizance of
which, as well as such, as were strictly legal, would belong to the fede-
ral judiciary, in virtue of this clause." 1 Tuck. Black. Comm. App. 418,
419. See also 2 Elliot's Debates, 380, 383, 390, 400, 418, 419.
1 See 3 Elliot's Debates, 142.
a The Federalist, No. 80. See also Id. No. 22; 2 Elliot's Debates,
389 390. — The reasonableness of this extent of the judicial power is
very much considered by Mr. Chief Justice Marshall, in delivering the
opinion of the court, in Cohens v. Virginia, (G Wheat. R. 413 to 423,)
from which some extracts will he made, in considering the appellate ju-
risdiction of the Supreme Court, in a future page.
CH. XXXVIir.] JUDICIARY JURISDICTION. 505
Hydra in government, from which notliing but con-
tradiction and confusion can proceed." ^
§ 1637. There is still more cogency, if it be pos-
sible, in the reasoning, as applied to "cases arising
under treaties made, or which shall be made, under
the authority of the United States." Without this
power, there would be perpetual danger of collis-
ion, and even of war, with foreign powers, and
an utter incapacity to fulfil the ordinary obligations of
treaties.^ The want of this power was (as w^e have
seen ^) a most mischievous defect in the confedera-
tion ; and subjected the country, not only to viola-
tions of its plighted faith, but to the gross, and almost
proverbial imputation of punic insincerity.'*
§ 1638. But, indeed, the whole argument on this
subject has been already exhausted in the preceding
part of these Commentaries, and therefore it may be
dismissed without farther illustrations, although many
humiliating proofs are to be found in the records of
the confederation.^
1 Tlie Federalist, No. gO ; Id. No. 22 ; Id. No. 1.5 ; 2 Elliot's Debates,
389, 390 ; 3 Elliot's Debates, 142, 143. — In the Convention, which fram-
ed the constitution, the following resolution was unanimously adopted.
"That the jurisdiction of the national judiciary shall extend to cases
arising under laws passed by the general legislature, and to such other
questions, as involve the national peace and harmony." Journ. of Con-
vention, 188, 189.
2 The Federalist, No. 22, No. 80; 2 Elliot's Debates, 390, 400; The
Federalist, No. 80. — The remarks of The Federalist, No. 80, on this
subject will be found very instructive, and should be perused by every
constitutional lawyer.
3 Ante, Vol. I. § 26G, 267, 483, 484 ; 3 Elliot's Debates, 148, 280.
4 3 Elliot's Debates, 281.
5 Ante, Vol. I. § 266, 267, 483, 484 ; The Federalist, No. 22, No. 80;
1 Tuck. Black. Comm. App. 418, 419, 420. — Tiiis clause was opposed
with great earnestness in some of the state conventions, and particu-
larly in that of Virginia, as alarming and dangerous to the rights and
VOL. III. 64
506 COXSTITUTION OF THE U. STATES. [bOOK III.
^ 1639. It is observable, that the language is, that
"the judicial power shall extend to all cases in law
and equity,'' arising under the constitution, laws, and
treaties of the United States.^ What is to be under-
stood by " cases in law and equity," in this clause ?
Plainly, cases at the common law, as contradistin-
guished from cases in equity, according to the known
distinction in the jurisprudence of England, which
our ancestors brought with them upon their emigra-
tion, and with which all the American states were fa-
miliarly acquainted.^ Here, then, at least, the cjnsiitu-
tion of the United States appeals to, and adopts, the
common law to the extent of making it a rule in the
pursuit of remedial justice in the courts of the Union.^
If the remedy must be in law, or in equity, according
to the course of proceedings at the common law, in
cases arising under the constitution, laws, and trea-
ties, of the United States, it w^ould seem irresistibly
liberties of the states, since it would bring every thing within the
vortex of the national jurisdiction. It was defended with great ability
and conclusiveness of reasoning, as indispensable to the existence of
the national government, and perfectly consistent with the safety and
prerogatives of the states. See 2 Elliot's Debates, 380 to 4'27 ; 3 Elli-
ot's Debates, 125, 128, 12.9, 133, 143: Id. 280; 4 Elliot's Debates, (Mar-
tin's Letter,) 45.
1 See 3 Elliot's Debates, 127, 128, 129, 130, 133, 141, 143, 154.
2 See Robinson v. Campbell, 3 Wheat. R. 212, 221, 223.
3 It is a curious fact, that while the adoption of the common law, as the
basis of the national jurisprudence, has been, in later times, the subject
of such deep political alarm with some statesmen, the non-existence of
it, as such a basis, was originally pressed by some of the ablest oppo-
nents of the constitution, as a principal defect. Mr. George Mason of
Virginia urged, that the want of a clause in the constitution, securing
to the people the enjoyment of the common law, was a fatal defect.
2 American Museum, 534 ; ante, Vol. I. p. 275. Yet the whole argu-
ment in the celel)rated Resolutions of Virginia of January, 1 800, sup-
poses, that the adoption of it would have been a most mischievous pro-
vifioiL
CH. XXXVIII.] JUDICIARY JURISDICTION. 507
to follow, that the principles of decision, by \v])ich
these remedies must be administered, must be deriv-
ed from the same source. Hitherto, such has been
the uniform interpretation and mode of administer-
ing justice in civil cases, in the courts of the United
States in this class of cases.^
§ 1640. Another inquiry may be, what constitutes
a cascj within the meaning of this clause. It is
clear, that the judicial department is authorized to
exercise jurisdiction to the full extent of the consti-
tution, laws, and treaties of the United States, when-
ever any quesdon respecting them shall assume
such a form, that the judicial power is capable of
acting upon it. When it has assumed such a form, it
then becomes a case ; and then, and not till then, the
judicial power attaches to it. A case, then, in the
sense of this clause of the constitution, arises, when
some subject, touching the constitution, laws, or trea-
ties of the United States, is submitted to the courts
by a party, who asserts his rights in the form pre-
scribed by law.^ In other words, a case is a suit in
law or equity, instituted according to the regular
course of judicial proceedings; and, when it involves
any question arising under the constitution, laws, or
treaties of the United States, it is within the judicial
power confided to the Union.^
1 See Cox ^ Dick v. United States, G Peters's Sup. R. 172,203;
Robinson v. Campbell, 3 Wheat. R. 212. See Madison's Report, 7 Jan-
uary, 1800, p. 28, 29; Chisholm's Executors v. Georgia, 2 Dall. R, 419,
433, 437 ; S. C. 2 Cond. R. C)35, G40, 642, per Iredell J. ; The Federalist,
No. 80, No. 83.
2 Osborn v. The Bank of the United States, 9 Wheat. R. 819. See
Mr. Marshall's Speech on the case of Jonathan Robhins ; Bee's Adm.
R. 277.
3 See 1 Tuck. Black. Cornm. App. 418, 419, 420 ; Madison's Virginia
508 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1641. Cases arising under the constitution, as
contradistinguished from those, arising under the
laws of the United States, are such as arise from the
powers conferred, or privileges granted, or rights
claimed, or protection secured, or prohibitions con-
tained in the constitution itself, independent of any
particular statute enactment. Many cases of this
sort may easily be enumerated. Thus, if a citizen
of one state should be denied the privileges of a cit-
izen in another state ;Mf a state should coin money,
or make paper money a tender ; if a person, tried for
a crime against the United States, should be denied
a trial by jury, or a trial in the state, where the crime
is charged to be committed ; if a person, held to
labour, or service in one state, under the law^s thereof,
should escape into another, and there should be a
refusal to deliver him up to the party, to whom such
service or labour may be due ; in these, and many
other cases, the question, to be judicially decided,
would be a case arising under the constitution.^ On
the other hand, cases arising under the laws of the
United States are such, as grow out of the legisla-
tion of congress, within the scope of their constitu-
tional authority, whether they constitute the right,
or privilege, or claim, or protection, or defence, of
the party, in whole or in part, by whom they are
asserted.^ The same reasoning applies to cases
arising under treaties. Indeed, wherever, in a judi-
Resolutions and Report, January, 1800, p. 28 ; Marhuin) v. Madison, 1
Cranch's R. J 37, 173, 174 ; Owing v. JVorwood, 5 Cranch, R. 344. fcee
2 Elliot's Debates, 418, 419.
1 The Federalist, No. 80.
2 1 Tucker's Black. Comm. App. 418, 419 ; ante, Vol. II. §
3 Marhunj v. Madison, 1 Crancli, 137, 173, 174.
CH. XXXVIII.] JUDICIARY JURISDICITON. 509
cial proceeding, any question arises, touching the
vaHdity of a treaty, or statute, or authority, exercis-
ed under the United States, or touching the con-
struction of any clause of the constitution, or any
statute, or treaty of the United States ; or touching
the validity of any statute, or authority exercised un-
der any state, on the ground of repugnancy to the
constitution, laws, or treaties, of the United States,
it has been invariably held to be a case, to which the
judicial power of the United States extends.^
§ 1642. It has sometimes been suggested, that a
case, to be within the purview of this clause, must be
one, in which a party comes into court to demand
something conferred on him by the constitution, or
a law, or a treaty, of the United States. But this
construction is clearly too narrow. A case in law or
equity consists of the right of the one party, as well
as of the other, and may truly be said to arise under
the constitution, or a law, or a treaty, of the United
States, whenever its correct decision depends on the
construction of either. This is manifestly the con-
struction given to the clause by congress, by the 25th
section of the Judiciary Act, (which was almost con-
temporaneous with the constitution,) and there is no
reason to doubt its solidity or correctness.^ Indeed,
the main object of this clause would be defeated by
any narrower construction ; since the power was
conferred for the purpose, in an especial manner, of
1 See Judiciary Act of 1789, ch. 20, § Q5 ; Madiji v. Hunter, 1 Wheat.
R. 304 ; Cohens v. Virginia, 6 Wheat. R. 2G4; Osborn v. Bank of the
United Slates, 9 Wheat. R. 738 ; Gibbons v. Ogden, 9 Wheat. R. 1.
3 Cohens V. Virginia, 6 Wheat. R. 378, 379, 391, 392. See also
1 Tuck. Black. Comm. App. 419, 420 ; Judiciary Act of 1789, ch. 20.
510 CONSTITUTION OF THE U. STATES. [bOOK III.
producing a uniformity of construction of the consti-
tution, laws, and treaties of the United States.^
§ 1643. This subject was a good deal discussed in
a recent case ^before the Supreme Court, where one
of the leading questions w^as, whether congress could
constitutionally confer upon the bank of the United
States, (as it has done by the seventh section of its
charter,^) general authority to sue, and be sued in the
circuit courts of the United States. It was contend-
ed, that they could not, because several questions
might arise in such suits, which might depend upon
the general principles of law, and not upon any act
of congress. It was held, that congress did consti-
tutionally possess the power, and had rightfully con-
ferred it in that charter.
§ 1644. The reasoning, on which this decision was
founded, cannot be better expressed, than in the very
language, in which it w^as delivered by Mr. Chief Justice
Marshall. " The question," said he, "is whether it (the
case) arises under a law^ of the United States. The
appellants contend, that it does not, because several
questions may arise in it, which depend on the general
principles of the law, not on any act of congress. If
this were sufficient to withdraw a case from the juris-
diction of the federal courts,almost every case, although
involving the construction of a law, would be with-
drawn ; and a clause in the constitution, relating to
a subject of vital importance to the government, and
expressed in the most comprehensive terms, would
be construed to mean almost nothing. There is
scarcely any case, every part of which depends on
the constitution, laws, or treaties of the United
1 The Federalist, No. 80 ; Cohens v. Virginia, G Wheat. R. .'BDl, 392.
2 Osbom V. Bank of the United Slates, 9 Wheat. R. 738, 819, 820.
3 Actofl816, ch, 44,§7.
CH. XXXVIII.] JUDICIARY JURISDICTION. 511
States. The questions, whether the fact, alleged as
the foundation of the action, be real or fictitious ;
whether the conduct of the plaintiff has been such as
to entitle him to maintain his action ; whether his
right is barred ; whether he has received satisfaction,
or has, in any manner, released his claims ; are ques-
tions, some or all, of which may occur in almost every
case ; and if their existence be sufficient to arrest the
jurisdiction of the court, words, which seem intended
to be as extensive, as the constitution, laws, and
treaties of the Union, which seem designed to give
the courts of the government the construction of all
its acts, so far as they affect the rights of individuals,
w^ould be reduced to almost nothing." ^
§ 1645. After adverting to the fact, that there is
nothing in the constitution to prevent congress giv-
ing to inferiour courts original jurisdiction in cases,
to which the appellate power of the Supreme Court
may extend, he proceeds : '' AVe perceive, then,
no ground, on which the proposition can be maintain-
ed, that congress is incapable of giving the circuit
courts original jurisdiction, in any case, to which the
appellate jurisdiction extends. We ask, then, if it
can be sufficient to exclude this jurisdiction, that the
case involves questions depending on genei-al princi-
ples ? A cause may depend on several questions of
fact and law. Some of these may depend on the
construction of a law of the United States ; others on
principles unconnected with that law. If it be a suf-
ficient foundation for jurisdiction, that the title or
right, set up by the party, may be defeated by one
construction of the constitution or law of the United
1 Osborn v. Bank of the United States, 9 Wheat. R. 819, 8-20.
512 CONSTITUTION OF THE U. STATES. [bOOK III.
States, and sustained by the opposite construction,
provided the facts necessary to support the action be
made out, then all the other questions must be de-
cided, as incidental to this, which gives that jurisdic-
tion. Those other questions cannot arrest the pro-
ceedings. Under this construction, the judicial
power of the Union extends effectively and benefi-
cially to that most important class of cases, which
depend on the character of the cause. On the oppo-
site construction, the judicial power never can be ex-
tended to a whole case, as expressed by the consti-
tution ; but to those parts of cases only, which present
the particular question involving the construction of
the constitution or the law. We say it never can be
extended to the whole case ; because, if the circum-
stance, that other points are involved in it, shall dis-
able congress from authorizing the courts of the
Union to take jurisdiction of the original cause, it
equally disables congress from authorizing those
courts to take jurisdiction of the whole cause, on an
appeal ; and thus it will be restricted to a single ques-
tion in that cause. And words obviously intended to
secure to those, who claim rights under the constitu-
tion, laws, or treaties, of the United States, a trial in
the federal courts, will be restricted to the insecure
remedy of an appeal upon an insulated point, after it
has received that shape, which may be given to it by
another tribunal, into which he is forced against his
will. We think, then, that when a question, to which
the judicial power of the Union is extended by the
constitution, forms an ingredient of the original cause,
it is in the power of congress to give the circuit courts
jurisdiction of that cause, although other questions of
fact or of law may be involved in it."
CH. XXXVIII.] JUDICIARY JURISDICTION. 513
§ 1646, " The case of the bank is, we think, a very
strong case of this description. The charter of incor-
poration not only creates it, but gives it every faculty,
which it possesses. The power to acquire rights of
any description, to transact business of any description,
to make contracts of any description, to sue on those
contracts, is given and nneasured by its charter; and
that charter is a law of the United States. This being
can acquire no right, make no contract, bring no suit,
which is not authorized by a law of the United States.
It is not only itself the mere creature of a law, but
all its actions, and all its rights are dependent on the
same law. Can a being, thus constituted, have a
case, which does not arise literally, as well as sub-
stantially, under the law ? Take the case of a con-
tract, which is put as the strongest against the bank.
When a bank sues, the first question, which presents
itself, and which hes at the foundation of the cause,
is, has this legal entity a right to sue 7 Has it a right
to come, not into this court particularly, but into any
court? This depends on a law of the United States.
The next question is, has this being a right to make
this particular contract ? If this question be decided
in the negative, the cause is determined against the
plaintiff; and this question, too, depends entirely on
a law of the United States. These are important
questions, and they exist in every possible case.
The right to sue, if decided once, is decided for ever ;
but the power of congress was exercised antecedent-
ly to the first decision on that right; and if it was
constitutional then, it cannot cease to be so, because
the particular question is decided. It may be revived
at the will of the party, and most probably would be
renewed, were the tribunal to be changed. But the
VOL. III. 65
514 CONSTITUTION OF THE U. STATES. [bOOK III.
question, respecting the right to make a particular
contract, or to acquire a particular property, or to
sue on account of a particular injury, belongs to
every particular case, and may be renewed in every
case. The question forms an original ingredient in
every cause. Whether it be in fact relied on, or not,
in the defence, it is still a part of the cause, and may
be relied on. The right of the plaintifl' to sue can-
not depend on the defence, which the defendant may
choose to set up. His right to sue is anterior to that
defence, and must depend on the state of things,
when the action is brought. The questions, which
the case involves, then, must determine its character-,
whether those questions be made in the cause or not.
The appellants say, that the case arises on the con-
tract ; but the vahdity of the contract depends on a
law of the United States, and the plaintiff is compel-
led, in every case, to show its validity. The case
arises emphatically under the law. The act of con-
gress is its foundation. The contract could never
have been made, but under the authority of that act.
The act itself is the first ingredient in the case, is its
origin, is that, from which every other part arises.
That other questions may also arise, as the execution
of the contract, or its performance, cannot change
the case, or give it any other origin, than the charter
of incorporation. The action still originates in, and
is sustained by, that charter.
^ 1647. "The clause, giving the bank a right to
sue in the circuit courts of the United States, stands
on the same principle with the acts authorizing offi-
cers of the United States, who sue in their own
names, to sue in the courts of the United States.
The post-master general, for example, cannot sue
CH. XXXVIIT.] JUDICIATIY JURISDICTION. 515
under that part of the constitution, which gives juris-
diction to the federal courts, in consequence of the
character of the party, nor is he autliorized to sue by
the judiciary act. He comes into the courts of the
Union under the authority of an act of congress, the
constitutionahty of which can only be sustained by
the admission, that his suit is a case arising under a
law of the United States. If it be said, that it is such
a case, because a law of the United States author-
izes the contract, and authorizes the suit, the same
reasons exist with respect to a suit brought by the
bank. That, too, is such a case ; because that suit,
too, is itself authorized, and is brought on a contract
authorized by a law of the United States. It de-
pends absolutely on that law, and cannot exist a mo-
ment without its authority.
§ 1648. " If it be said, that a suit brought by the
bank may depend in fact altogether on questions, un-
connected with any law of the United States, it is
equally true with respect to suits brought by the
post-master general. The plea in bar may be pay-
ment, if the suit be brought on a bond, or non-
assumpsit, if it be brought on an open account, and
no other question may arise, than what respects the
complete discharge of the demand. Yet the consti-
tutionality of the act, authorizing the post-master
general to sue in the courts of the United States, has
never been drawn into question. It is sustained
singly by an act of congress, standing on that con-
struction of the constitution, which asserts the right
of the legislature to give original jurisdiction to the
circuit courts, in cases arising under a law of the
United States. The clause in the patent law,
authorizing suits in the circuit courts, stands, w^e
516 CONSTITUTION OF THE U. ^STATES. [bOOK III.
think, on the same principle. Such a suit is a case
arising under a law of the United States. Yet the
defendant may not, at the trial, question the validity
of the patent, or make any point, which requires the
construction of an act of congress. He may rest his
defence exclusively on the fact, that he has not vio-
lated the right of the plaintiff. That this fact be-
comes the sole question made in the cause, cannot
oust the jurisdiction of the court, or establish the
position, that the case does not arise under a law of
the United States.
^ 1649. "It is said, that a clear distinction exists
between the party and the cause ; that the party
may originate under a law, with which the cause has
no connexion ; and that congress may, with the same
propriety, give a naturaUzed citizen, who is the mere
creature of a law, a right to sue in the courts of the
United States, as give that right to the bank. This
distinction is not denied ; and, if the act of congress
was a simple act of incorporation, and contained
nothing more, it might be entitled to great considera-
tion. But the act does not stop with incorporating
the bank. It proceeds to bestow upon the being it
has made, all the faculties and capacities, which that
being possesses. Every act of the bank grows out
of this law, and is tested by it. To use the language
of the constitution, every act of the bank arises out
of this law. A naturalized citizen is indeed made a
citizen under an act of congress, but the act does not
proceed to give, to regulate, or to prescribe his capa-
cities. He becomes a member of the society, pos-
sessing all the rights of a native citizen, and standing,
in the view of the constitution, on the footing of a
native. The constitution does not authorize con-
CH. XXXVIII.] JUDICIARY JURISDICTION. 517
gress to enlarge or abridge those rights. The simple
power of the national legislature is to prescribe a
uniform rule of naturalization, and the exercise of
this power exhausts it, so far as respects the individ-
ual. The constitution then takes him up, and, among
other rights, extends to him the capacity of suing in
the courts of the United States, precisely under the
same circumstances, under which a native might sue.
He is distinguishable in nothing from a native citizen,
except so far as the constitution makes the distinc-
tion. The law makes none. There is, then, no
resemblance between the act incorporating the bank,
and the general naturalization law\ Upon the best
consideration, we have been able to bestow on this
subject, we are of opinion, that the clause in the act
of incorporation, enabling the bank to sue in the
courts of the United States, is consistent with the
constitution, and to be obeyed in all courts." ^
§ 1650. Cases may also arise under laws of the
United States by imphcation, as well as by express
enactment ; so, that due redress may be administered
by the judicial power of the United States. It is
not unusual for a legislative act to involve conse-
quences, which are not expressed. An officer, for
example, is ordered to arrest an individual. It is not
necessary, nor is it usual, to say, that he shall not be
punished for obeying this order. His security is
imphed in the order itself. It is no unusual thing for
an act of congress to imply, without expressing, this
very exemption from state control. The collectors
of the revenue, the carriers of the mail, the mint
1 Oshorn V. Bank of the United State, 9 Wheat. R. 821 to 828. See
also Bank of the United States v. Georgia, 9 Wheat. R. 904.
518 CONSTITUTION OF THE U. STATES. [bOOK III.
establishment, and all those institutions, which are
public in their nature, are examples in point. It has
never been doubted, that all, who are employed in
them, are protected, while in the line of their duty ;
and yet this protection is not expressed in any act of
congress. It is incidental to, and is imphed in, the
several acts, by which those institutions are created ;
and is secured to the individuals, employed in them,
by the judicial power alone ; that is, the judicial
power is the instrument employed by the govern-
ment in administering this security.^
§ 1651. It has also been asked, and may again be
asked, why the words, "cases in equity," are found
in this clause ? What equitable causes can grow out
of the constitution, laws, and treaties of the United
States ? To this the general answer of the Feder-
ahst^ seems at once clear and satisfactory. " There
is hardly a subject of litigation between individuals,
which may not involve those ingredients oi fraud,
accident, trust, or hardship, which would render the
matter an object of equitable, rather than of legal
jurisdiction, as the distinction is known and establish-
ed in several of the states. It is the peculiar pro-
vince, for instance, of a court of equity, to relieve
against what are called hard bargains : these are con-
tracts, in which, though there may have been no di-
rect fraud or deceit, sufficient to invaUdate them in a
court of law ; yet there may have been some undue,
and unconscionable advantage taken of the necessi-
ties, or misfortunes of one of the parties, which a
1 Oshorn v. Bank of United States, 9 Wheat. R. 865, 866 ; Id. 847,
848.
2 The Federalist, No. 80. See also 1 Tuck. Black. Comm. App. 418,
419; 2 Elliot's Debates, 389, 390.
CH. XXXVIII.] JUDICIARY JURISDICTION. 519
court of equity would not tolerate. In such cases,
where foreigners were concerned on either side, it
would be impossible for the federal judicatories to
do justice, without an equitable, as well as a legal ju-
risdiction. Agreements to convey lands, claimed
under the grants of diflerent states, may afford an-
other example of the necessity of an equitable juris-
diction in the federal courts. This reasoning*"may
not be so palpable in those states, where the formal
and technical distinction between law and equity
is not maintained, as in this state, where it is exem-
phfied by every day's practice."
§ 1652. The next clause, extends the judicial
power "to all cases affecting ambassadors, other
" pubHc ministers, and consuls." The propriety of this
delegation of powder to the national judiciary will
scarcely be questioned by any persons, who have
duly reflected upon the subject. There are various
grades of public ministers, from ambassadors (which
is the highest grade,) down to common resident min-
isters, whose rank, and diplomatic precedence, and
authority, are well known, and w^ell ascertained in the
law and usages of nations.^ But whatever may be
their relative rank and grade, public ministers of
every class are the immediate representatives of
their sovereigns. As such representatives, they owe
no subjection to any laws, but those of their own
1 Three classes are usually distingnished in diplomacy ; 1. Ambassa-
dors, who are the highest order, who are considered as personally re-
presenting their sovereigns ; 2. Envoys Extraordinary, and ministers
plenipotentiary; 3. Ministers resident, and ministers charges d'affaires.
Mere common charges d'affaires, are deemed of still lower rank. Dr.
Lieber's Encyclopedia Americana, art. Ministers^ Foreign. Vattel, B. 4,
ch. 6, § 71 to 74.
520 CONSTITUTION OF THE U. STATES. [BOOK III.
country, any more than their sovereign ; and their
^actions are not generally deemed subject to the con-
trol of the private law of that state, wherein they are
appointed to reside. He, that is subject to the coer-
cion of laws, is necessarily dependent on that power,
by whom those laws were made. But public minis-
ters ought, in order to perform their duties to their
own sovereign, to be independent of every power,
except that by which they are sent ; and, of conse-
quence, ought not to be subject to the mere munici-
pal law of that nation, wdierein they are to exercise
their functions.^ The rights, the powers, the duties,
1 1 Black. Comm. 258 ; Vattel, B. 4, ch. 7, § 80, 81, 92, 99, 101 ;
1 Kent's Comm. Lect. 2, p. 37, 38, (2d edition, p. 38, 39.) — In the case
of the Schooner Exchange v. M'Faddon, (7 Cranch, 11(3, 138,) the Su-
preme Court state the grounds of the immunity of foreign ministers, in
a very clear manner, leaving the important question, whether that im-
munity can be forfeited by misconduct, open to future decision. "A
second case," (says Mr. Chief Justice Marshall, in delivering the opin-
ion of the court,) " standing on the same principles w^ith the first, is the
immunity, which all civilized nations allow to foreign ministers. What-
ever may be the principle, on which this immunity is established, wheth-
er we consider him, as in the place of the sovereign he represents, or
by a political fiction suppose him to be extra-territorial, and, therefore,
in point of law, not within the jurisdiction of the sovereign, at whose
court he resides ; still, the immunity itself is granted by the governing
power of the nation, to which the minister is deputed. This fiction of
ex-territoriality could not be erected, and supported against the will of
the sovereign of the territory. He is supposed to assent to it.
"This consent is not expressed. It is true, that, in some countries,
and in this, among others, a special law is enacted for the case. But
the law obviously proceeds on the idea of prescribing the punishment
of an act previously unlawful, not of granting to a foreign minister a
privilege, which ho would not otherwise possess.
" The assent of the sovereign to the very important and extensive
exemptions from territorial jurisdiction, which are admitted to attach to
foreign ministers, is implied from the considerations, that, without such
exemption, every sovereign would hazard his own dignity by employing
a public minister abroad. His minister would owe temporary and local
allegiance to a foreign prince, and would be less competent to tlie ob-
CH. XXXVIH.] JUDICIARY JURISDICTION. 521
and the privileges of public ministers are, therefore,
to be determined, not by any municipal constitutions,
but by the law of nature and nations, which is ec^ual-
ly obligatory upon all sovereigns, and all states.^
What these rights, powers, duties, and privileges are,
are inquiries properly belonging to a treatise on the
law of nations, and need not be discussed here.^
But it is obvious, that every question, in which these
rights, powers, duties, and privileges are involved, is
so intimately connected with the public peace, and
policy, and diplomacy of the nation, and touches the
dignity and interest of the sovereigns of the ministers
concerned so deeply, that it would be unsafe, that
they should be submitted to any other, than the
highest judicature of the nation.
jects of his mission. A sovereign, committing the interests of his nation
with a foreign power to the care of a person, whom he has selected for
that purpose, cannot intend to subject his minister in any degree to that
pov/er ; and, therefore, a consent to receive him implies a consent, that
he shall possess those privileges, which his principal intended he should
retain — privileges which are essential to the dignity of his sovereign,
and to the duties he is bound to perform.
<'In what cases a minister, by infracting the laws of the country, in
which he resides, may subject himself to other punishment, than will be
inflicted by his own sovereign, is an inquiry foreign to the present pur-
pose. If his crimes be such, as to render him amenable to the local juris-
diction, it must be, because they forfeit the privileges annexed to his
character ; and the minister, by violating the conditions, under which he
was received, as the representative of a foreign sovereign, has surren-
dered tlie immunities granted on those conditions ; or, according to the
true meaning of the original assent, has ceased to be entitled to them."
See also 1 Black. Comm. 254, and CJiristian's note, (4) ; Vattel, B. 4,
ch. 7, § 92, 99, 101 ; Id. ch. 8, § 113, 114, 115, IIG; Id. cli. 9, § 117, 119,
120, 121, 122, 123, 124 ; 1 Kent's Comm. Lect. 2.
1 Ex parte Cabrera, 1 Wash. Cir. R. 232.
2 Vattel discusses the subject of the rights, privileges, and immuni-
ties of foreign ambassadors very much at large, in B. 4, ch. 7, of his
Treatise on the Law of Nations.
VOL. III. 66
522 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1653. It is most fit, that this judicature should,
in the hrst instance, have original jurisdiction of such
cases,^ so that, if it should not be exclusive, it might
at least be directly resorted to, when the delays of a
procrastinated controversy in inferior tribunals might
endanger the repose, or the interests of the govern-
ment.^ It is well known, that an arrest of the Rus-
sian ambassador in a civil suit in England, in the
reign of Queen Anne, was well nigh bringing the
two countries into open hostilities ; and was atoned
for only by measures, which have been deemed, by
her own writers, humiliating. On that occasion, an
act of parliament was passed, which made it highly
penal to arrest any ambassador, or his domestic ser-
vants, or to seize or distrain his goods ; and this act,
elegantly engrossed and illuminated, accompanied
by a letter from the queen, was sent by an ambassa-
dor extraordinary, to propitiate the offended czar.^
And a statute to the like effect exists in the criminal
code established by the first congress, under the con-
stitution of the United States.^
§ 1654. Consuls, indeed, have not in strictness a
diplomatic character. They are deemed, as mere
commercial agents ; and therefore partake of the or-
dinary character of such agents; and are subject to
the municipal laws of the countries, where they re-
1 The Federalist, No. 80. See also 2 Elliot's Debates, 390,400;
The Federalist, No. 80 ; Marhunj v. Madison, 1 Cranch, R. 137, 174,
175.
2 1 Tucker's Black. Comm. App. SGI; Ex parte Cabrera, 1 Wash.
Cirt. R.232.
3 1 Black. Comm. 255, 25(J ; 4 Id. 70.
4 Act of 1790, ch. 3G, § 2G, 27; 1 Kent's Comm. Lect. 9, p. 170, 171,
(2d edition, p. 182, 183.)
en. XXXV[[I.] JUDICIARY JURISDICTION^. 523
side.^ Yet, as they are the public agents of the na-
tion, to which they belong, and are often entrusted
with the performance of very delicate functions of
state, and as they might be greatly embarrassed by
being subject to the ordinary jurisdiction of inferior
tribunals, state and national, it was thought highly
expedient to extend the original jurisdiction of the
Supreme Court to them also.^ The propriety of
vesting jurisdiction, in such cases, in some of the
national courts seems hardly to have been question-
ed by the most zealous opponents of the constitu-
tion.^ And in cases against ambassadors, and other
foreign ministers, and consuls, the jurisdiction has
been deemed exclusive.^
1 See Vattel, B. 2, ch. 2, § 31 ; Id. B. 4, ch. 6, § 75 ; Wicquefort, B.
1, § 5; 1 Kent's Comm. Lect. 2, p. 40, 43, [2d edition, p. 41 to 44 ;]
2 Brown's Adm. Law, ch. 14, p. 503 ; Viveash v. Becker, 3 Maule if Sel.
R. 284 ; Rawle on Const, ch. 24, p. 224 to 22(3.
2 The Federalist, No. 80 ; Cohens v. Virginia, 6 Wheat. R. 396 ;
1 Kent's Comm. Lect. 2, p. 44, (2d edition, p. 45 ;) Rawle on Const, ch.
24, p. 224 to 226.
3 2 Elliot's Debates, 383, 384, 418; 3 Id. 281 ; 1 Tucker's Black.
Comm. App. 183. —Under the confederation no power existed in the
national government, to punish any person for the violation of the rights
of ambassadors, and other foreign ministers, and consuls. Congress,
in November, 1781, recommended to the legislatures of the states, to
pass laws punishing infractions of the law of Nations, committed by vio-
lating safe conducts, or passports granted by congress ; by acts of hos-
tility against persons in amity with the United States ; by infractions of
the immunities of ambassadors ; by infractions of treaties, or conven-
tions ; and to erect a tribunal, or to vest o'le, already existing, with
power to decide on offences against the law of nations ; and to author-
ize suits for damages by the party injured, and for compensation to the
United States, for damages sustained by them, from an injury done to a
foreign power by a citizen. This, like other recommendations, ,was
silently disregarded, or openly refused. See Journal of Congress, 23d
of Nov. 1781° p. 234. Sergeant on Const. Introduction, p. 16, (2d edi-
tion.)
4 Rawle on Constitution, ch. 21, p. 203; Id. ch. 24, p. 222, 223;
624 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1655. It has been made a question, whether this
clause, extending jurisdiction to all cases affecting
ambassadors, ministers, and consuls, includes cases of
indictments found against persons for offering vio-
lence to them, contrary to the statute of the United
States, punishing such offence. And it has been
held, that it does not. Such indictments are mere
public prosecutions, to which the United States and
the offender only are parties ; and which are con-
ducted by the United States, for the purpose of vin-
dicating their own laws, and the law^ of nations.
They are strictly, therefore, cases affecting the Unit-
ed States ; and the minister himself, who has been
injured by the offence, has no concern in the event
of the prosecution, or the costs attending it.^ In-
deed, it seems difficult to conceive, how there can
be a case affecting an ambassador, in the sense t'
of the constitution, unless he is a party to the suit on
record, or is directly affected, and bound by the
judgment.^
§ 1656. The language of the constitution is per-
haps broad enough to cover cases, where he is not a
party ; but may yet be affected in interest. This
peculiarity in the language has been taken notice of,
in a recent case, by the Supreme Court.^ " If a suit
I Kent's Comm. Lcct. 2, )). 44, ('2(1 edition, p. 45); Id. I.cct. 15, p. 294,
295, (2d edition, ]). :iI4, :iI5) ; Cummonwtallh v. Kosloff, 5 Serg. &
Kawle, 545 ; Hall v. Young, I] Pick. R. 80 ; UniUd Slates v. Ortega,
II Wheat. R. 407, and Mr. Wlieaton's note, Id. 409 to 475 ; Manhardt
V. Soderstrom, 1 Binn. R. 138 ; United States v. JR,tvara,2 Dall. R. 297;
Coheius V. Virginia, (> Wheat. R. 39G, 397 ; Osborn v. Bank of United
States, 9 Wheat. R. 820, 821 ; Chisholm v. Georgia, 2 Dall. R. 431, per
Iredell, J.
1 United States v. Ortega, 1 1 Wheat. R. 467. 8ec also Osborn v.
Bank of United Stales, 9 Wheat. R. 854, 855. ~ Ibitl. 3 4 ibid.
CH. XXXVIII.] JUDICIARY JURISDICTION. 525
be broiiglit a,2;ainst a foreign minister," (said Mr.
Chief Justice Marshall, in delivering the opinion of
the court) " the Supreme Court alone has oiiginal
jurisdiction, and this is shown on the record. But,
suppose a suit to be brought, which affects the
interest of a foreign minister, or by which the
person of his secretary, or of his servant, is arrest-
ed. The minister does not, by the mere arrest of
his secretary, or his servant, become a party to
this suit ; but the actual defendant pleads to the
jurisdiction of the court, and asserts his privilege.
If the suit affects a foreign minister, it must be dis-
missed, not because he is a party to it, but because
it affects him. The language of the constitution
in the two cases is different. This court can take
cognizance of all cases ' affecting ' foreign ministers ;
and, therefore, jurisdiction does not depend on the
party named in the record. But this language
changes, w^hen the enumeration proceeds to states.
Why this change 1 The answer is obvious. In the
case of foreign ministers, it was intended, for reasons,
which all comprehend, to give the national courts ju-
risdiction over all cases, by which they were in any
manner affected. In the case of states, Avhose imme-
diate, or remote interests were mixed up with a mul-
titude of cases, and who might be affected in an al-
most infinite variety of ways, it was intended to give
jurisdiction in those cases only, to w^hich they were
actual parties."
^ 1657. The next clause extends the judicial power
"to all cases of admiralty and maritime jurisdiction."
^ 1658. The propriety of this delegation of power
seems to have been litde questioned at the time of
adopting the constitution. " The most bigotted idol-
526 CONSTITUTION OF THE U. STATES. [bOOK III.
izers of state authority," said the Federalist,^ " have
not thus far shown a disposition to deny the national
judiciary the cognizance of maritime causes. These
so generally depend on the law of nations, and so
commonly affect the rights of foreigners, that they
fall within the considerations, which are relative to
the public peace." The subject is dismissed with an
equally brief notice by Mr. Chief Justice Jay, in the
case of Chisholm v. Georgia, in the passage already
cited.^ It demands, however, a more enlarged ex-
amination, which will clearly demonstrate its utility
and importance, as a part of the national power.
^ 1659. It has been remarked by the Federalist, in
another place, that the jurisdiction of the court of ad-
miralty, as well as of other courts, is a source of fre-
quent and intricate discussions, sufficiently denoting
the indeterminate limits, by which it is circumscribed.^
This remark is equally true in respect to England and
America; to the high court of admiralty sitting in the
parent country ; and to the vice-admiralty courts sit-
ting in the colonies. At different periods, the juris-
diction has been exercised to a very different extent ;
and in the colonial courts it seems to have had boun-
daries different from those prescribed to it in Eng-
land. It has been exercised to a larger extent in
Ireland, than in England; and down to this very day
it has a most comprehensive reach in Scotland.^ The
jurisdiction claimed by the courts of admiralty, as
properly belonging to them, extends to all acts and
1 The Federalist, No. 80. See also 2 Elliot's Debates, 383, 384, 3l<0,
418,419.
2 2 Dal). R. 475; ante Vol. TIT. s^ 1633.
3 The Federalist, No. 37. See 1 Kent's Comm. Lect. 17.
4 See Dt Lovio v. Boil, 2 Gallison's R. 398 ; 1 Kent's Coimn. Lect. 17,
passim.
CH. XXXVIII.] JUDICIARY JURISDICITON. 527
torts done upon the high seas, and within the ebb and
flow of the sea, and to all maritime contracts, that is,
to all contracts touching trade, navigation, or business
upon the sea, or the waters of the sea within the ebb
and flow of the tide. Some part of this jurisdiction
has been matter of heated controversy between the
courts of common law, and the high court of admi-
ralty in England, with alternate success and defeat.
But much of it has been gradually yielded to the latter,
in consideration of its public convenience, if not of its
paramount necessity. It is not our design to go into
a consideration of these vexed questions, or to at-
tempt any general outline of the disputed boundaries.
It will be sufficient in this place to present a brief
view of that, which is admitted, and is indisputable.-^
§ 1660. The admiralty and maritime jurisdiction,
(and the word, "maritime," was doubdess added to
guard against any narrow interpretation of the pre-
ceding word, " admiralty,") conferred by the consti-
tution, embraces two great classes of cases ; one de-
pendent upon locality, and the other upon the nature
of the contract. The first respects acts or injuries
done upon the high sea, where all nations claim a
1 Upon this subject the learned reader is referred to Sergeant on
Const. Law, ch.'21, and the authorities there cited ; to Gordon's Digest,
art. 7G3 to 792 ; to 1 Kent's Comrn. Lect, J 7, passim ; 2 Brown's Adm.
Law, ch. 4, 6, 12. Mr. Sergeant, in his introduction to the second edi-
tion of his very valuable work on Constitutional Law, (p. 3, 4, and note,)
seems to suppose, that the admiralty commission of the governor of
New-Hampshire, referred to in De Lovio v. Boit, 2 Gallison's R. 470,
471, might be an extension of the ordmary commissions of the colonial
admiralty judges. It is believed, that he is mistaken in this supposition.
In Stokes's History of the Colonies there is a commission similar in its
main clauses ; and Mr. Stokes says, that it was the usual form of the com-
missions. Stokes's Hist, of Colon, ch. 4, p. 166. See also Mr. Whea-
ton's Notes to the case of United States v. Bevans, 3 Wheat. R. 336,
357,361,365.
528 CONSTITUTION OF THE U, STATES. [bOOK III.
common right and common jurisdiction ; or acts, or
injuries done upon the coast of the sea; or, at farthest,
acts and injuries done within the ebb and flow of the
tide. The second respects contracts, ch\ims, and
services purely maritime, and touching rights and du-
ties appertaining to commerce and navigation. The
former is again divisible into two great branches, one
embracing captures, and questions of prize arising
jure belli ; the other embracing acts, torts, and inju-
ries strictly of civil cognizance, independent of belli-
gerent operations.-^
§ 1661. By the law^ of nations the cognizance of
all captures, jure belli, or, as it is more familiarly
phrased, of all questions of prize, and their incidents,
belongs exclusively to the courts of the country, to
which the captors belong, and from whom they derive
their authority to make the capture. No neutral na-
tion has any right to inquire into, or to decide upon,
the validity of such capture, even though it should
concern property belonging to its own citizens or
subjects, unless its own sovereign or territorial rights
are violated; but the sole and exclusive jurisdiction
belongs to the courts of the capturing belligerent.
And this jurisdiction, by the common consent of na-
tions, is vested exclusively in courts of admiralty, pos-
sessing an original, or appellate jurisdiction. The
courts of common law are bound to abstain from any
decision of questions of this sort, wdiether they arise
directly or indirectly in judgment. The remedy
for illegal acts of capture is by the institution of
proper prize proceedings in the prize courts of the
captors.^ If justice be there denied, the nation itself
1 See Martin v. Hunter, 1 Wheat. R. 335.
2 Le Caux v. Eden, Doug. R. 594; Lindo v. Rodney, Doug. R. 613,
note ; U Invincible, I Wheat. R. 238 ; The Eslrella, 4 Wheat. R. 298 ;
CH. XXXVIII.] JUDICIARY JURISDICTION. 529
becomes responsible to the parties aggrieved ; and if
every remedy is refused, it then becomes a subject
for the consideration of the nation, to which the par-
ties aggrieved belong, which may vindicate their rights,
either by a peaceful appeal to negotiation, or a resort
to arms.
§ 1662. It is obvious upon the slightest considera-
tion, that cognizance of all questions of prize, made
under the authority of the United States, ought to
belong exclusively to the national courts. How, oth-
erwise, can the legality of the captures be satisfacto-
rily ascertained, or deliberately vindicated? It seems
not only a natural, but a necessary appendage to the
power of war, and negotiation with foreign nations.
It would otherwise follow, that the peace of the w^hole
nation might be put at hazard at any time by the mis-
conduct of one of its members. It could neither re-
store upon an illegal capture ; nor in many cases afford
any adequate redress for the wrong; nor punish the
aggressor. It would be powerless and palsied. It
could not perform, or compel the performance of the
duties required by the law of nations. It would be a
sovereign without any sohd attribute of sovereignty ;
and move in vincidis only to betray its imbecility.
Even under the confederation, the power to decide
upon questions of capture and prize was exclusively
conferred in the last resort upon the national court of
appeals.^ But like all other powers conferred by that
instrument, it was totally disregarded, wherever it in-
terfered with state policy, or with extensive popular
interests. We have seen, that the sentences of the
Bingham v. Cahot, 3 Dall. 19 ; La Amistad de Rues, 5 Wheat. R. 385;
1 Kent's Comm. Lect. 17, p. 334, (2 edition, p. 356.)
I Confederation, Art. 9.
VOL. III. 67
530 CONSTITUTION OF THE U. STATES. [bOOK III.
national prize court of appeals were treated, as mere
nullities ; and were incapable of being enforced, until
after the establishment of the present constitution.^
The same reasoning, which conducts us to the conclu-
sion, that the national courts ought to have jurisdic-
tion of this class of admiralty cases, conducts us
equally to the conclusion, that, to be effectual for the
administration of international justice, it ought to be
exclusive. And accordingly it has been constantly
held, that this jurisdiction is exclusive in the courts of
the United States.*
^ 1663. The other branch of admiralty jurisdiction,,
dependent upon locality, respects civil acts, torts, and
injuries done on the sea, or (in certain cases) on wa-
ters of the sea, where the tide ebbs and flows, without
any claim of exercising the rights of war. Such are
cases of assaults, and other personal injuries ; cases of
collision, or running of ships against each other ; cases
of spoliation and damage, (as they are technically
called,) such as illegal seizures, or depredations upon
property ; cases of illegal dispossession, or withhold-
ing possession from the owners of ships, commonly
called possessory suits ; cases of seizures under mu-
nicipal authority for supposed breaches of revenue,
or other prohibitory laws ; and cases of salvage for
meritorious services performed in saving property,
whether derelict, or wrecked, or captured, or other-
wise in imminent hazard from extraordinary perils.^
1 See Penhallow v. Doane, 3 Dall. R. 52 ; Jennings v. Carson, 4 Cranch
2 ; ante, Vol. I, §
2 See Martin v. Hunter, 1 Wheat. R. 345, 337 ; United States v. Be-
vans, 3 Wheat. R. 387 ; Houston v. Moore, 5 Wlieat. R. 49 ; Ogden v.
Saunders, 1'2 Wheat. R. 278 ; 1 Kent's Comm. Lcct. 17, p. 330 to 337,
[2 edition, p. 353 to 360.]
3 See La Vengeance, 3 Dall. R. 297 ; Martin v. Hunter, 1 Wheat. R.
335, 337 ; The Sarah, 8 Wheat. R. 391, 394 ; McDonovgh v. Dannery,
CH. XXXVIir.] JUDICIARY JURISDICTION. 531
§ 1664. It is obvious, that this class of cases has,
or may have, an intimate relation to the rights and
duties of foreigners in navigation and maritime com-
merce. It may materially affect our intercourse with
foreign states ; and raise many questions of interna-
tional law, not merely touching private claims, but na-
tional sovereignty, and national reciprocity. Thus,
for instance, if a collision should take place at sea be-
tween an American and a foreign ship, many impor-
tant questions of public law might be connected with
its just decision ; for it is obvious, that it could not
be governed by the mere municipal law of either
country. So, if a case of recapture, or other salvage
service performed to a foreign ship, should occur, it
must be decided by the general principles of maritime
law, and the doctrines of national reciprocity. Where
a recapture is made of a friendly ship from the hands
of its enemy, the general doctrine now established is,
to restore it upon salvage, if the foreign country, to
w^hich it belongs, adopts a reciprocal rule ; or to con-
demn it to the recaptors, if the hke rule is adopted in
the foreign country. And in other cases of salvage
the doctrines of international and maritime law come
into full activity, rather than those of any mere muni-
cipal code.^ There is, therefore, a peculiar fitness in
3 Dall. R. 182 ; The Blaireau, 2 Crancli, 249 ; The Amiable J^ancy,
3 Wlieat. R. 546 ; The General Smith, 4 Wheat. R. 438 ; Rose v. Hime-
ley, 4 Cranch, 241 ; Manro v. Jllmeida, 10 Wlicat. R. 473 ; The Apolloji,
9 Wheat. R. 362 ; The Marianna Flora, 11 Wheat. R. 1, 42 ; The Fa-
biiis, 2 Rob. R. 245 ; The Thames, 5 Rob. R. 345 ; The St. Juan Bap-
tista, 5 Rob. R. 33, 40, 41 ; Abbott on Shipping, P. 2, ch. 4, note to Ameri-
can edition, 1829, p. 132, J38; The Dundee, 1 Bngg. Adm. R. 109;
The Ruckers, 4 Rob. R. 73 ; 1 Kent's Comra. Lect. 17, p. 342 to 352,
[2 edition, p. 365 to 377 .] The Agincourt, 1 Ilag-g. R. 271.
1 The Santa Cruz, 1 Rob. R. 50 ; The San Francisco, 1 Edvv. R. 179 ;
The Adeline, 9 Cranch, 244 ; 2 Wheat. R. App. 40 to 45 ; Abbott on
Shipping, ( Amer. edit. 1899,) P. 3, ch. 10, p. 397, 417, 422.
532 CONSTITUTION OF THE U. STATES. [bOOK III.
appropriating this class of cases to the national tribu-
nals ; since they will be more likely to be there de-
cided upon large and comprehensive principles, and
to receive a more uniform adjudication ; and thus to
become more satisfactory to foreigners.
§ 1665. The remaining class respects contracts,
claims, and services purely maritime. Among these
are the claims of material-men and others for repairs
and outfits of ships belonging to foreign nations, or to
other states ; ^ bottomry bonds for monies lent to ships
in foreign ports to relieve their distresses, and enable
them to complete their voyages ; ^ surveys of vessels
damaged by perils of the seas;^ pilotage on the high
seas ; ^ and suits for mariners' wages. ^ These, in-
deed, often arise in the course of the commerce and
navigation of the United States ; and seem emphati-
cally to belong, as incidents, to the power to regulate
commerce. But they may also affect the commerce
and navigation of foreign nations. Repairs may be
done, and supplies furnished to foreign ships ; money
may be lent on foreign bottoms ; pilotage and mari-
ners' wages may become due in voyages in foreign
employment; and in such cases the general maritime
law enables the courts of admiralty to administer a
wholesome and prompt justice.^ Indeed, in many of
these cases, as the courts of admiralty entertain suits
1 The SL Jago de Cuba, 9 Wheat. R.409, 416 ; The Aurora, 1 Wheat.
R. 105.
2 The Aurora, 1 Wheat R. 96.
3 Janney v. Columbia Insurance Compariy, 10 Wheat. R. 412, 415, 418.
4 The Anne, 1 Mason's R. 508.
5 The Thomas Jefferson, 10 Wheat. R. 428.
6 The Two Friends, 1 Rob. R. 271; The Helena, 4 Rob. R. 3; The
Jacob, 4 Rob. R. 245 ; The Graiiludine, 3 Rob. R. 240 ; The Favourite,
2 Rob. R. 232 ; Abbott on Shipping, P. 2, ch. 3, p. 115, Story's note ;
Id. P. 4, ch. 4 ; The Aurora, 1 Wheat. R. 96.
CH. XXXVIII.] JUDICIARY JURISDICTION. 533
m rem, as well as in personam, they are often the only
courts, in which an effectual redress can be afforded,
especially when it is desirable to enforce a specific
maritime lien.-^
^ 1666. So that we see, that the admiralty jurisdic-
tion naturally connects itself, on the one hand, with our
diplomatic relations and duties to foreign nations, and
their subjects ; and, on the other hand, with the great
interests of navigation and commerce, foreign and do-
mestic.^ There is, then, a peculiar wisdom in giving
to the national government a jurisdiction of this sort,
which cannot be wielded, except for the general good ;
and which multiplies the securities for the public peace
abroad, and gives to commerce and navigation the most
encouraging support at home. It may be added, that,
in many of the cases included in these latter classes,
the same reasons do not exist, as in cases of prize,
for an exclusive jurisdiction; and, therefore, when-
ever the common law is competent to give a remedy
in the state courts, they may retain their accustom-
ed concurrent jurisdiction in the administration ofit.^
1 Manro v. Almeida, 10 Wheat. R. 473 ; The Merino, 9 Wheat. R.
391, 416, 417 ; The General Smith, 4 Wheat. R. 438 ; The Thomas Jef-
ferson, 10 Wheat. R. 428 ; Sheppard v. Taylor, 5 Peters's Sup. R. Q"/^ •
I Kent's Comm. Lect. 17, p. 352 to 354, (2 edition, p. 378 to 381 ;) 2
Brown's Adm. Law, ch. 71.
2 "The admiralty jurisdiction," said the Supreme Court in a celebrat-
ed case, "embraces all questions of prize and salvage, in the correct ad-
judication of which foreign nations are deeply interested. It embraces
also maritime torts, contracts, and offences, in which the principles of
the law and comity of nations often form an essential inquiry. All
these cases, then, enter into the national policy, affect the national
rights, and may compromit the national sovereignty." Martin v. Hun-
ter, 1 Wheat. R. 335.
3 Mr. Chancellor Kent and Mr. Rawle seem to think,* that the admi-
ralty jurisdiction, given by ihe constitution, is in all cases necessarily
* 1 Kent's Comm. Lect. 17, p. 351, (2 edit. p. 377 ;) Rawlo on the Const, ch. 21, p. 202. See
also 1 Tucker's Black. Comm. App 181, 182 ; 2 Elliot's Deb. 390 ; 10 Wheat. R. 418.
534 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1667. We have been thus far considering the
admiralty and maritime jurisdiction in civil cases
only. But it also embraces all public offences, com-
mitted on the high seas, and in creeks, havens, basins,
and bays within the ebb and flow of the tide, at least
in such as are out of the body of any county of a
state. In these places the jurisdiction of the courts
of admiralty over offences is exclusive ; for that of
the courts of common law^ is hmited to such offences,
as are committed w^ithin the body of some county.
And on the sea coast, there is an alternate, or divided
exclusive. But it is believed, that this opinion is founded in a mistake.
It is exclusive in all matters of prize, for the reason, that at the com-
mon law this jurisdiction is vested in the courts of admiralty, to the
exclusion of the courts of common law. But in cases, where the juris-
diction of the courts of common law and the admiralty are concurrent,
(as in cases of possessory suits, mariners' wages, and marine torts.)
there is nothing in the constitution, necessarily leading to the conclu-
sion, that the jurisdiction was intended to be exclusive ; and there is as
little ground, upon general reasoning, to contend for it. The reasonable
interpretation of the constitution would seem to be, that it conferred on
the national judiciary the admiralty and maritime jurisdiction, exactly
according to the nature and extent and modifications, in which it exist-
ed in the jurisprudence of the common law. Where the jurisdiction
was exclusive, it remained so ; where it was concurrent, it remained so.
Hence, the states could have no right to create courts of admiralty, as
such, or to confer on their own courts, the cognizance of such cases, as
were exclusively cognizable in admiralty courts. But the states might
well retain and exercise the jurisdiction in cases, of which the cogni-
zance was previously concurrent in the courts of common law. This
latter class of cases can be no more deemed cases of admiralty and
maritime jurisdiction, than cases of common law jurisdiction. The ju-
diciary act, of 1789, ch. 20, § 9, has manifestly proceeded upon tliis sup-
position ; for, while it has conferred on the District Courts, " exclusive
original cognizance of all civil causes of admiralty and maritime juris-
diction," it has, at the same time, saved "to the suitors, in all cases, the
right of a common law remedy, where the common law is competent to
give it." We shall, hereafter, have occasion to consider more at large,
in what cases there is a concurrent jurisdiction in the national and
state courts.
CH. XXXVUl.] JUDICIARY JURISDICTION. 535
jurisdiction of the courts of common law, and admi-
ralty, in places between high and low water mark ;
the former having jurisdiction when, and as far as the
tide is out, and the latter when, and as far as the tide
is in, usque ad filiim aqiice, or to high water mark.^
This criminal jurisdiction of the admiralty is therefore
exclusively vested in the national government ; and
may be exercised over such crimes and offences, -as
congress may, from time to time, delegate to the cog-
nisance of the national courts.^ The propriety of
vesting this criminal jurisdiction in the national gov-
ernment depends upon the same reasoning, and is
estabhshed by the same general considerations, as
have been already suggested in regard to civil cases.
It is essentially connected with the due regulation,
and protection of our commerce and navigation on
the high seas, and with our rights and duties in re-
gard to foreign nations, and their subjects, in the ex-
ercise of common sovereignty on the ocean. The
states, as such, are not known in our intercourse with
foreign nations, and not recognised as common sove-
reigns on the ocean. And if they were permitted to
exercise criminal or civil jurisdiction thereon, there
would be endless embarrassments, arising from the
1 Constable's case, 5 Co. R. 106; 2 Instit. 51 ; 1 Black. Comm. 110;
Hale in Harg. Law Tracts, pt. 1, ch. 3; Id. ch. 4, p. 10, 12, pt. 2, ch. 7,
p. 88 ; 2 Hale, P. C. p. 13, «fcc. ; 64 Com. Dig. .Yavigation, A. «Si B. ; Id.
Admiraltij, E. J. ; United States v. Grush, 5 Mason's R. 290 ; 1 Kent's
Comm. Lect. 17, p. 337 to 342, [2d edition, p. 3G0 to 365 ;] United States
V. Bevans, 3 Wheat. R. 336 ; Id. 357 ; Mr. Wheaton's notes, 357, 361,
365, 366, 368, 369 ; Beeve's case, 2 Leach. Cir. Cas. 1093, (4th edition ;)
Ryan & Riiss. Cas. 243; 4 Tucker's Black. Comm. App- 7.
2 United States v. Bevans, 3 Wheat. R. 356, 386 to 389 ; 4 Elliot's
Deb. 290, 291 ; 1 Kent's Comm. Lect. m, p. 319, 320, (2d edition, p. 339,
340;) Lect. 17, p. 337, (2d edition, p, 360.)
536 CONSTITUTION OF THE U. STATES. [bOOK III.
conflict of their laws, and the most serious dangers of
perpetual controversies with foreign nations. In short,
the peace of the Union would be constantly put at
hazard by acts, over which it had no control ; and
by assertions of right, which it might wholly dis-
claim.^
§ 1668. The next clause extends the judicial power
" to controversies, to which the United States shall be
a party." ^ It scarcely seems possible to raise a rea-
1 It has been made a question, whether the admiralty jurisdiction can
be exercised within the territories of the United States by the judges
of the territorial courts, appointed under the territorial governments, as
they are appointed for a limited term only, and not during good beha-
viour. The decision has been in favour of the jurisdiction, upon the
ground, (already suggested,) that congress have the exclusive power to
regulate such territories, as they may choose ; and they may confer on
the territorial government such legislative powers, as they may choose.
The courts appointed in such territories are not constitutional courts,
in which the judicial powers conferred by constitution on the general
government can be deposited. They are merely legislative courts ; and
the jurisdiction, with which they are invested, is not a part of the judicial
power, defined in the third article of the constitution. The Ameiican
Insurance Company v. Canter, 1 Peters's Sup. R. 511.
2 Mr. Tucker, distinguishes between the word " cases," used in the
preceding clauses, and the word " controversies," here used. The
former he deems to include all suits, criminal as well as civil. The
latter, as includmg such only, as are of a civil nature. As here applied,
controversies "seem" (says he) " particularly appropriated to such dis-
putes, as might arise between the United States, and any one or more
states, respecting territorial or fiscal matters ; or between the United
States and their debtors, contractors, and agents. This construction is
confirmed by the application of the word in the ensuing clauses, where
it evidently refers to disputes of a civil nature only, such, for example,
as may arise between two or more states, or between citizens of differ-
ent states, or between a state and the citizens of another state, &c."
1 Tucker's Black. Comm. App. 420, 421. Mr. Justice Iredell, in his
opinion in Ch^sholmv. Georgia, 2 Ball. R. 419, 431, 432, gives the
same construction to the word " controversies," confining it to such as
are of a civil nature.
In the original draft of the constitution, this clause, " controversies
to which the United States shall be a party," was omitted. It was add-
CH. XXXVIII.] JUDICIARY JURISDICTION. 537
sonable doubt, as to the propriety of giving to the
national courts jurisdiction of cases, in which the
United States are a party. ^ It would be a perfect
novelty in the history of national jurisprudence, as
well as of public law, that a sovereign had no au-
thority to sue in his own courts. Unless this power
were given to the United States, the enforcement of
all their rights, powers, contracts, and privileges in
their sovereign capacity, would be at the mercy of
the states. They must be enforced, if at all, in the
state tribunals. And there would not only not be any
compulsory power over those courts to perform such
functions ; but there would not be any means of produc-
ing uniformity in their decisions. A sovereign without
the means of enforcing civil rights, or compell-
ing the performance, either civilly or criminally, of
public duties on the part of the citizens, w^ould be a
most extraordinary anomaly. It would prostrate the
. Union at the feet of the states. It would compel the
national government to become a supplicant for justice
before the judicature of those, who were by other parts
of the constitution placed in subordination to it.^
§ 1669. It is observable, that the language used
does not confer upon any court cognizance of all con-
troversies, to which the United States shall be a party,
so as to justify a suit to be brought against the Unit-
ed States without the consent of congress. And
ed afterwards without any apparent objection. Journal of Convention,
226, 297, 298.
1 The Federalist, No. 80; 3 Elliot's Debates, 280, 281. See also
2 Elliot's Deb. 380, 383, 384, 389, 390, 400, 404.
2 Mr. Sergeant, in his Introduction to his work on Constitutional Law,
has abundantly shown the mischief of such a want of power under the
confederation. See Serg. Const. Law, Introd. p. 15 to 18.
VOL. III. 68
538 CONSTITUTION OF THE U. STATES. [bOOK III.
the language was doubtless thus guardedly introduced,
for the purpose of avoiding any such conclusion. It is
a known maxim, justified by the general sense and
practice of mankind, and recognized in the law of na-
tions, that it is inherent in the nature of sovereignty
not to be amesnable to the suit of any private person,
without its own consent.^ This exemption is an attri-
bute of sovereignty, belonging to every state in the
Union; and was designedly retained by the national
government.^ The inconvenience of subjecting the
government to perpetual suits, as a matter of right, at
the will of any citizen, for any real or supposed claim
or grievance, was deemed far greater, than any positive
injury, that could be sustained by any citizen by the
delay or refusal of justice. Indeed, it was presumed,
that it never would be the interest or inclination of a
wise government to withhold justice from any citizen.
And the difficulties of guarding itself against fraudulent
claims, and embarassing and stale controveisies, were
beheved far to outweigh any mere theoretical advan-
tages, to be derived from any attempt to provide a sys-
tem for the administration of universal justice.
^ 1670. It may be asked, then, whether the citizens
of the United States are wholly destitute of remedy,
in case the national government should invade their
rights, either by private injustice and injuries, or by
public oppression ? To this it may be answered, that
in a general sense, there is a remedy in both cases. In
1 The Federalist, No. 81. See Chisholm v. Georgia, 2 Dall. R. 419,
478, S. C. ; 2 Peters's Cond. R. G35, G74 ; 1 Black. Comm. 241 to 243 ;
Cohens V. Virginia, 6 Wheat. R. 380; Id. 411, 412.
2 Mr. Locke strenuously contends for this exemption of the sovereign
from judicial amesnability ; and in this, he does but follow out the doc-
trines ofPuffendorf, and other writers on the law of nations. See Locke
on Government, Ft. 2, § 205 ; Puffendorf 's Law of Nature and Nations,
B. 8, ch. 10 ; Vattel, B. 1, ch. 4, § 49, 50.
CH. XXXVIII.] JUDICIARY JURISDICTIOX. 539
regard to public oppressions, the whole structure of
the government is so organize.!, as to aflbrd the means
of redress, by enabling the people to remove public
functionaries, who abu.se their trust, and to substitute
others more faithful, and more honest, in their stead.
If the oppression be in the exercise of powers clearly
constitutional, and the people refuse to interfere in this
manner, then indeed, the party must submit to the
wrong, as beyond the reach of all human powder ; for
how can the people themselves, in Uieir collective ca-
pacity, be compelled to do justice, and to vindicate the
rights of those, who are subjected to their sovereign
control?^ If the oppression be in the exercise of un-
constitutional powers, then the functionaries, who w'ield
them, are amesnable for iheir injurious acts to the judi-
cial tribunals of the country, at the suit of the oppress-
ed.
^ 1671. As to private injustice and injuries, they
may regard either the rights of property, or the rights
of contract ; for the national government is per se inca-
pable of any merely personal wrong, such as an as-
sault and battery, or other personal violence. In regard
to property, the remedy for injuries lies against the im-
mediate perpetrators, who may be sued, and cannot
shelter themselves under any imagined immunity of
the government from due responsibility.^ If, therefore,
any agent of the government shall unjustly invade the
property of a cidzen under colour of a public authori-
ty, he must, like every other violator of the laws, re-
1 See on this subject, 1 Black. Comm. 243 to 245.
2 See Hoijt v. Gelslon, 3 Wheat. R. 24G; Oshorn v. Bank of United
States, 9 wlieat. R. 738; Marburyv. Madison, 1 Cranch. 137, 164, 1G5;
3 Black. Comm. 255.
540 CONSTITUTION OF THE U. STATES. [bOOK III.
spend in damages. Cases, indeed, may occur, in which
he may not always have an adequate redress, without
some legislation by congress. As for example, in places
ceded to the United States, and over which they have
an exclusive jurisdiction, if his real estate is taken with-
out, or against lawful authority. Here he must rely on
the justice of congress, or of the executive department.
The greatest difficulty arises in regard to the contracts
of the national government ; for as they cannot be sued
without their own consent, and as their agents are not
responsible upon any such contracts, when lawfully
made, the only redress, which can be obtained, must
be by the instrumentality of congress, either in provid-
ing (as they may) for suits in the common courts of
justice to establish such claims by a general law, or by
a special act for the relief of the pardcular party. In
each case, however, the redress depends solely upon
the legislative department, and cannot be administered,
except through its favour. The remedy is by an ap-
peal to the justice of the nation in that forum, and not
in any court of justice, as matter of right.
^ 1672. It has been sometimes thought, that this is a
serious defect in the organization of the judicial de-
partment of the national government. It is not, how-
ever, an objection to the consUtution itself; but it Hes,
if at all, against congress, for not having provided, (as it
is clearly within their constitutional authority to do,)
an adequate remedy for all private grievances of this
sort, in the courts of the United States. In this res-
pect, there is a marked contrast between the actual
right and practice of redress in the nadonal govern-
ment, as well as in most of the state governments, and
the right and practice maintained under the Briush
constitution. In England, if any person has, in point of
CH. XXXVIII.] JUDICIARY JURISDICTION. 541
property, a just demand upon the king, he may peti-
tion him in his court of chancery (by what is called a
petition of right) where the chancellor will administer
right, theoretically as a matter of grace, and not upon
compulsion ;^ but in fact, as a matter of constitutional
duty. No such judicial proceeding is recognised, as
existing in any state of this Union, as matter of consti-
tutional right, to enforce any claim, or debt against a
state. In the few cases, in which it exists, it is matter
of legislative enactment.^ Congress have never yet
acted upon the subject, so as to give judicial redress
for any non-fulfilment of contracts by the national gov-
ernment. Cases of the most cruel hardship, and in-
tolerable delay have already occurred, in which merito-
rious creditors have been reduced to grievous suffer-
ing, and sometimes to absolute ruin, by the tardiness of
a justice, w^hich has been yielded only after the humble
supplications of many years before the legislature.
One can scarcely refrain from uniting in the suggestion
of a learned commentator, that in this regard the con-
stitutions, both of the national and state governments,
stand in need of some reform, to quicken the legisla-
tive action in the administration of justice ; and, that
1 1 Black. Comm. 243; Comyn's Dig. Prerogative, D. 78 to D. 85;
The Banker's case, 1 Freeman 11. 331; S. C. 5 Mod. 29 ; 11 Harg.
State Trials, 137; Skinner's R. 601 ; 2 Dall. R. 437 to 445; S. C.
2 Peters's Cond. R. 642 to 646. But see Macbtath v. Haldimand, 1 T.
R. 172, 176, 177.
2 A suit against the state has been allowed in Virginia* and Mary-
land, and some other states by statute. But it is intimated, that, even
when judgment has passed in favour of the claimaiit, he has sometimes
received no substantial benefit from the judgment, from the omission of
the' legislature to provide suitable funds, or to make suitable appropria-
tions to discharge the debt. 1 Tucker's Black. Comm. App. 352.
* 1 Tucker's Black. Comm. 243, note (5) ; Chisholm v. Georgia, 2 Dall. R. 419, 434, 435.
542 CONSTITUTION OF THE U. STATES. [bOOK III.
some mode ought to be provided, by which a pecunia-
ry right against a state, or against the United States,
might be ascertained, and established by the judicial
sentence of some court ; and when so ascertained and
established, the payment might be enforced from the
national treasury by an absolute appropriation.^ Surely,
it can afford no pleasant source of reflection to an
American citizen, proud of his rights and privileges,
that in a monarchy the judiciary is clothed with ample
powers to give redress to the humblest subject in a
matter of private contract, or property against the crown ;
and, that in a republic there is an utter denial of justice,
in such cases, to any citizen through the instrumentaUty
of any judicial process. He may complain ; but he can-
not compel a hearing. The republic enjoys a despotic
sovereignty to act, or refuse, as it may please ; and is
placed beyond the reach of law. The monarch bows
to the law, and is compelled to yield his prerogative at
the footstool of justice.^
1 1 Tuck. Black. Comm. App. 352.
2 Mr. Chief Justice Jay, in his opinion in the great case of ChisholrrCs
Executors v. Georgia, 3 Dall. R. 414, 474, (S. C. 2 Peters's Cond R. 635,
674,) takes a distinction between the case of the suability of a state, and
the suability of the United States, by a citizen under the constitution, af-
firming the former, and denying the latter. His reason is thus stated. " In
all cases of actions against states, or individual citizens, the national courts
are supported in alltlieir legal and constitutional proceedings and judg-
ments, by the arm of the executive powers of the United States. But
in cases of actions against the United States, there is no power, which
the courts can call to their aid. From this distinction, important conclu-
sions are deducible ; and they place the case of a state, and the case of
the United States, in a very different view." In the case of Macheath
V. Haldimand, (] Term. Repoits, 172.) Lord Mansfield seemed to inti-
mate great doubts, whether, a petition of right would lie in England in
any case, except of a private debt due from the crown ; and not for
debts contracted under the authority of parliament Before the revo-
lution, he said, " all the public supplies were given to the king, who, in
CH. XXXVIIl.] JUDICIARY JURISDICTION. 543
§ 1673. The next clause extends the judicial power
"to controversies between two or more states; be-
" tween a state and the citizens of another state ; be-
" tv;een citizens of different states, claiming lands un-
"der grants of different states; and between a state
"or the citizens thereof, and foreign states, citizens, or
"subjects." Of these, we will speak in their order.
And, first, "controversies between two or more states." ^
This power seems to be essential to the preservation
of the peace of the Union. "History" (says the
Federalist,^) gives us a horrid picture of the dissen-
sions and private wars, which distracted and desolated
Germany, prior to the institution of the imperial cham-
ber by Maximilian, towards the close of the fifteenth
century ; and informs us at the same time of the vast
influence of that institution, in appeasing the disorders,
and estabhshing the tranquillity of the empire. This
was a court hivested with authority to decide finally
all differences among the members of the Germanic
body."^ But we need not go for illustrations to the
history of other countries. Our own has presented, in
past times, abundant proofs of the irritating effects
his individual capacity contracted for all expenses. He alone had the
disposition of the public money. But since that time, the supplies had
been appropriated by parliament to particular purposes ; and now, icho-
tvtr advances money for the public service, trusts to the faith of parlia-
ment" Id. 176. But see Buller J.'s opinion, in the same case. See
also Mr. Justice Iredell's opinion in Chisholm v. Georgia, 2 Dall. R. 437
to 445.
1 In the first draft of the constitution, the words were to controver-
sies " between two or more states, except such as shall regard territory
or jurisdiction:'' The exception was subsequently abandoned. Jouinal
of Convention, p. 226.
2 The Federalist, No. 80.
3 See also J Kent's Comm. Lect. 14, p. 277, 278, (2d edition, p. 295,
296 ;) 1 Robertson's Charles V. p. 183, 395,397.
544 CONSTITUTION OF THE U. STATES. [bOOK III.
resulting from territorial disputes, and interfering claims
of boundary between the states. And there are yet
controversies of this sort, which have brought on a bor-
der warfare, at once dangerous to public repose, and
incompatible with the public interests.^
^ 1674. Under the confederation, authority was
given to the national government, to hear and deter-
mine, (in the manner pointed out in the article,) in the
last resort, on appeal, all disputes and differences be-
tween two or more states concerning boundary, juris-
diction, or any other cause whatsoever.^ Before the
adoption of this instrument, as well as afterwards, very
irritating and vexatious coniroveries existed between
several of the states, in respect to soil, jurisdiction, and
boundary ; and threatened the most serious public
mischiefs.^ Some of these controversies were heard
and determined by the court of commissioners, ap-
pointed by congress. But, notwithstanding these ad-
judications, the conflict w as maintained in some cases,
until after the establishment of the present constitu-
tion.^
^ 1675. Before the revolution, controversies between
the colonies, concerning the extent of their rights of
soil, territory, jurisdiction, and boundary, under their
respective charters, were heard and determined before
1 See Sergeant on Const. Introduction, p. 11 to 16; 2 Elliot's Dob.
418.
2 Confederation, art. 9.
3 2 Elliot's Deb. 418 ; Sergeant on Const. Introduction, p. 11, IQ, 13,
15, 16; 5 Journ. of Congress, 456 ; 7 Journ. of Congress, 364 ; 8 Journ.
of Congress, 83 ; 9 Journ. of Congress, 64 ; 12 Journ. of Congress, 10,
52,219,220,230.
4 jVew York v. Connecticut, 4 Dall. R. 3 ; Fowler v. Ldndsey, 3 Dall.
R. 411 ; 3 Elliot's Deb. 281 ; 2 Elliot's Deb. 418.
CH. XXXVIII.] JUDICIARY JURISDICTION. 545
the king in council, who exercised original jurisdiction
therein, upon the principles of feudal sovereignty.^ This
jurisdiction was often practically asserted, as in the case
of the dispute between Massachusetts and New Hamp-
shire, decided by the privy council, in 1679;^ and in
the case of the dispute between New Hampshire and
New York, in 1764.^ Lord Hardwicke recognised this
appellate jurisdiction in the most deliberate manner, in
the great case of Penn v. Lord Baltimore^' The same
necessity, which gave rise to it in our colonial state, must
continue to operate through all future time. Some tribu-
nal, exercising such authority, is essential to prevent an
appeal to the sword, and a dissolution of the government.
That it ought to be estabhshed under the national,
rather than under the state, government ; or, to speak
more properly, that it can be safely established under
the former only, would seem to be a posidon self-evi-
dent, and requiring no reasoning to support it.^ It may
justly be presumed, that under the national govern-
ment in all controversies of this sort, the decision will
be impartially made according to the principles of jus-
tice ; and all the usual and most effectual precautions
are taken to secure this impartiality, by confiding it to
the highest judicial tribunal.^
^ 1676. Next; " controversies between a state and
" the citizens of another state." " There are other
1 1 Back. Comm. 231.
2 Ante, Vol. i, ^ 80 ; 1 Chalm. Annals, 489,490; 1 Hutch. Hist. 319.
3 Sergeant on Const, in Introduction, p. 5,6; 3 Belknap's Hist, of
New Hampshire, 29(i, App. 10.
4 1 Vesey's R. 444.
5 The Federalist, No. 39. See also the remarks of Mr. Chief Jus-
tice Jjiy, ante, Vol. i, § 488, note ; 2 Elliot's Debates, 418.
6 The Federalist, No. 39, 80.
VOL. III. 69
546 CONSTITUTION OF THE U. STATES. [BOOK III.
sources," says the Federalist,^ " besides interfering
claims of boundary, from which bickerings and ani-
mosities may spring up among the members of the
Union. To some of these we have been witnesses
in the course of our past experience. It will be read-
ily conjectured, that I allude to the fraudulent laws,
which have been passed in too many of the states.
And though the proposed constitution establishes par-
ticular guards against the repetition of those instances,
which have hitherto made their appearance ; yet it is
warrantable to apprehend, that the spirit, w^hich pro-
duced them, will assume new shapes, that could
not be foreseen, nor specifically provided against.
Whatever practices may have a tendency to distract
the harmony of the states are proper objects of fed-
eral superintendence and control. It may be esteem-
ed the basis of the Union, that * the citizens of each
state shall be entitled to all the privileges and immu-
nities of citizens of the several states.' And if it be
a just principle, that every government ought to pos-
sess the means of executing its ow^n provisions by its
own authority, it will follow, that, in order to the in-
violable maintenance of that equality of privileges and
immunities, to wiiich the citizens of the Union will
be entitled, the national judiciary ought to preside in
all cases, in w-hich one state, or its citizens, are oppos-
ed to another state, or its citizens. To secure the
full effect of so fundamental a provision against all
evasion and subterfuge, it is necessary, that its con-
struction should be committed to that tribunal, which,
having no local attachments, w^ill be likely to be im-
partial between the diff'erent states and their citizens,
and which, owing its official existence to the Union,
1 The Federalist, No. 80.
CH. XXXVIII.] JUDICIARY JURISDICTION. 547
will never be likely to feel any bias inauspicious to
the principles, on which it is founded." It is added,
" The reasonableness of the agency of the national
courts in cases, in which the state tribunals cannot be
supposed to be impartial, speaks for it. No man
ought certainly to be a judge in his own cause, or in
any cause, in respect to which he has the least inter-
est or bias. This principle has no inconsiderable
weight in designating the federal courts, as the proper
tribunals for the determination of controversies be-
tween different states and their citizens." ^
§ 1677. And here a most important question of a
constitutional nature was formerly htigated ; and that
is, whether the jurisdiction given by the constitution
in caseSj in which a state is a party, extended to suits
brought against a state, as well as bij it, or was exclu-
sively confined to the latter. It is obvious, that, if
a suit could be brought by any citizen of one state
against another state upon any contract, or matter of
property, the state would be constantly subjected to
judicial action, to enforce private rights against it in
its sovereign capacity. Accordingly at a very early
period numerous suits were brought against states
by their creditors to enforce the payment of debts,
or other claims. The question was made, and
most elaborately considered in the celebrated case of
Chisholm v. Georgia ; ^ and the majority of the Su-
preme Court held, that the judicial power under the
constitution applied equally to suits brought by, and
against a state. The learned judges, on that occa-
1 See also the remarks of Mr. Chief Justice Jay, in Chisholm v.
Georgia, 2 Dall. R. 474, cited in the note, ante Vol. i. § 488.
2 2 Dall. R. 419 ; S. C, 2 Peters's Cond. R. 635. See also 1 Kent's
Comm, Lect. 14, p. 278, (2d edit. p. 296, 297;) Cohens v. Virginia
6 Wheat. R. 381.
548 CONSTITUTION OF THE U. STATES. [BOOK III.
sion, delivered seriatim opinions, contnining the
grounds of their respective opinions. It is not my
intention to go over these grounds, though they are
stated with great abihty and legal learning, and ex-
hibit a very thorough mastery of the whole subject.^
The decision created general alarm among the states ;
and an amendment was proposed, and ratified by the
states,^ by which the power was entirely taken away,
so far as it regards suits brought against a state. It
is in the following words: " The judicial power of the
" United States shall not be construed to extend to
" any suit in law, or equity, commenced or prosecuted
" against one of the United States by citizens of
" another state, or by citizens, or subjects of any
" foreign state." This amendment was construed to
include suits then pending, as v.ell as suits to be com-
menced thereafter ; and accordingly all the suits then
pending were dismissed, without any further adjudi-
cation.^
1 Although the controversy is now ended, tl;e opinions deserve a
most attentive perusal, from their very able exposition of many consti-
tutional principles. It is remarkable, thj't the Federalist (No. 81,)
seems to have taken the opposite ground from the majority of the judges,
holding, that the states were not suable, hut might themselves sue under
this clause of the constitution.* I confess it seems to me difficult to
reconcile this position with the reasoning on the same suliject in the
preceding number, (80,) a part of which is quoted in the text, (§ 1676.)
Mr. Justice Iredell, who dissented from theother judges of the Supreme
Court, in Chisholm v. Georgia, put his opinion mainly on the ground, that
it was a suit for a debt, tor which no action lay, at least compulsively, at
the common law against the crown, but at most, only a petition of right ;
and in America, wijoever contracts with a state trusts to the good faith
of the state.
2 In 1793; 3 Dall. R. 378.
3 Hollingsworth v. Virginia, 3 Dall. R. 378. — The history and rea-
sons of this amendment are succinctly stated by Mr. Chief Justice Mar-
shall, in Cohem v. Virginia, 6 Wheat. R. 406.
* Sec also 2 Elliot's Deb. 390, 391, 401, 405.
CH. XXXVIIl.] JUDICIARY JURISDICTION. 549
§ 1678. Since this amendment has been made, a
question of equal importance has arisen ; and that is,
whether the amendment applies to original suits only
brought against a state, leaving the appellate jurisdic-
tion of the Supreme Court in its full vigour over all
constitutional questions, arising in the progress of any
suit bi'ought by a state in any state court against any
private citizen or alien. But this question will more
properly come under review, when we are consider-
ing the nature and extent of the appellate jurisdic-
tion of the Supreme Court. At present, it is only
necessary to state, that it has been solemnly adjudged,
that the amendment applies only to original suits
against a state; and does not touch the appellate
jurisdiction of the Supreme Court to re-examine, on
an appeal or writ of error, a judgment or decree ren-
dered in any state court, in a suit brought originally
by a state against any private person.^
§ 1679. Another inquiry suggested by the original
clause, as well as by the amendment, is, when a state
is properly to be deemed a party to a suit, so as to
avail itself of, or to exempt itself from, the operation
of the jurisdiction conferred by the constitution. To
such an inquiry, the proper answer is, that a state, in
the sense of the constitution, is a party only, when it
is on the record as such ; and it sues, or is sued in its
political capacity. It is not sufficient, that it may
have an interest in a suit between other persons, or
that its rights, powers, privileges, or duties, come
therein incidentally in question. It must be in terms
a plaintiff or defendant, so that the judgment, or de-
cree may be binding upon it, as it is in common suits
binding upon parties and privies. The point arose in
1 Cohens v. Virginiay 6 Wheat. R. 2fc)4.
550 CONSTITUTION OF THE U. STATES. [bOOK III.
an early state of the government, in a suit between pri-
vate persons, where one party asserted the land in con-
troversy to be in Connecticut and the other in New
York ; and the court held, that neither state could be
considered as a party. ^ It has been again discussed in
some late cases ; and the doctrine now firmly establish-
ed is, that a state is not a party in the sense of the con-
stitution, unless it appears on the record, as such, either
as plaintiff or defendant. It is not sufficient, that it
may have an interest in the cause, or that the parues
before the court are sued for acts done, as agents of
the state.^ In short, the very immunity of a state from
1 Foivler v. Lindsey, 3 Dall. R. 411 ; S. C. I Peters's Cond. R. J90,
191 ; Stfde of New York v. State of Connecticut, 4 Dall. R. 1, 3 lo 6;
United States v. Peters, 5 Cranch's R. 115, 139 ; 1 Kent's Comm. Lect.
15, p. 302, (2d edit. p. 323.)
2 The reasoning of Mr. Chief Justice Marshall in Osborn v. Bank of
United States, (9 Wheat. R. 846, &c.) on this point is very full and satis-
factory, and deserves to be cited at large. It is only necessary to pre-
mise, that the suit was a bill in equity brought by the Bank of the United
States agrainst Osborn and others, as state officers, for an injunction and
other relief, they having levied a tax of one hundred thousand dollars
on certain property of the bank, under a state law of the state of Ohio.
« We proceed now," said the Chief Justice, " to the 6th point made by
the appellants, which is, that if any case is made in the bill, proper for
the interference of a court of chancery, it is against the state of Ohio,
in which case the circuit court could not evercise jurisdiction.
" The bill is brought, it is said, for the purpose of protecting the bank
in the exercise of a franchise, granted by a law of the United States,
which franchise the state of Ohio asserts a right to invade, and is about
to invade. It prays the aid of the court to restrain the officers of the
state from executing the law. It is, then, a controversy between the
bank and the state of Ohio. The interest of the state is direct and im-
mediate, not consequential. The process of the court, though not di-
rected against the state by name, acts directly upon it, by restrainmg its
officers. The process, therefore, is substantially, though not in form,
against the state, and the court ought not to proceed without making
the state a party. If this cannot be done, the court cannot take juris-
diction of the cause.
"The full pressure of this argument is felt, and the difficulties it pre-
sents are acknowledged. The direct interest of the state in the suit, as
CH. XXXVIII.] JUDICIARY JURISDICTION. 651
being made a party, constitutes, or may constitute, a
solid ground, why the suit should be maintained
against other parties, who act as its agents, or claim
under its title ; though otherwise, as the principal, it
might be fit, that the state should be made a party
upon the common principles of a court of equity.^
brought, is admitted ; and, had it been in the power of the bank to make
it a party, perhaps no decree ought to have been pronounced in the cause,
until the state was before the court. But this was not in the power of
the bank. The eleventh amendment of the constitution has exempted a
state from the suits of citizens of other states, or aliens ; and the very
difficult question is to be decided, whether, in such a case, the court may
act upon the agents employed by the state, and on the property in their
hands.
" Before we try tliis question by the constitution, it may not be time
misapplied, if we pause for a moment, and reflect on the relative situa-
tion of the Union with its members, should the objection prevail.
" A denial of jurisdiction forbids all inquiry into the nature of the case.
It applies to cases perfectly clear in themselves ; to cases, where the gov-
e'-nment is in the exercise of its best established and most essential
powers, as well as to those, which may be deemed questionable. It as-
serts, that the agents of a state, alleging the authority of a law void in
itself, because repugnant to the constitution, may arrest the execution of
any law of the United States. It maintains, that, if a state shall impose
a fine or penalty on any person employed in the execution of any law of
the United States, it may levy that fine or penalty by a ministerial offi-
cer, without the sanction even of its own courts ; and that the individual,
though he perceives the approaching danger, can obtain no protection
from the judicial department of the government. The carrier of the
mail, the collector of the revenue, the marshal of a district, the recruit-
in<T officer, may all be inhibited, under ruinous penalties, from the per-
formance of their respective duties ; the warrant of a ministerial officer
may authorize the collection of these penalties ; and the person thus
obstructed in the performance of his duty, may indeed resort to his ac-
tion for damages, after the infliction of the injury, but cannot avail him-
self of the preventive justice of the nation to protect him in the perform-
ance of his duties. Each member of the Union is capable, at its will, of
1 Oshorn v. Bank of United States, 9 Wheat. R. 738, SSS to 845; Id.
846 ; The Governor of Georgia v. Madrazo, 1 Peters's Sup. R. IIO;
111, 122.
552 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1680. The same principle applies to cases, where
a state has an interest in a corporation ; as when it is
a stockholder in an incorporated bank, the corpora-
tion is still sua!)le, although the state, as such, is
attacking the nation, of arresUng its progress at every step, of acting
vi<'-orou.-ly and effectually in the execution of its designs, while the na-
tion stands naked, stripped of its defensive armour, and incapable of
sliiehling its agent, or executing its laws, otherwise than by proceedings,
which are to take place alter the mischief is perpetrated, and which
must often be ineffectual, from the inability of the agents to make com-
pensation.
"•' These are said to be extreme cases ; but the case at bar, had it been
put by wuy of illustration in argument, might have been teru)ed an ex-
treme case; and, if a penalty on a revenue officer for performing his
duty, be more obviously wrong, than a penalty on the bank, it is a differ-
ence in degree, not in principle. Public sentiment would be more
shocked by the infliction of a penalty on a public officer for the perfoim-
ance of his duty, than by the infliction of this penalty on a bank, which,
while carrying on the fiscal operations of the government, is also trans-
acting its own business. But, in both cases, the officer levying the pen-
alty acts under a void authority, and the power to restrain him is denied
as positively in the one, as in the other.
"The distinction between any extreme case, and that which has ac-
tually occurred, if, indeed, any difference of principle can be supposed
to exist between them, disappears, when considering the question of
jurisdiction ; for, if the courts of the United States cannot rightfully
protect the agents, who execute every law authorized by the constitu-
tion, from the direct action of state agents in the collection of penalties,
they cannot rightfully protect those, who execute any law.
"The question, then, is, whether the constitution of the United States
has provided a tribunal, which can peacefully and rightfully protect
those, who are employed in carrying into execution the laws of the
Union, from the attempts of a particular state to resist the execution of
those laws.
" The state of Ohio denies the existence of this power ; and contends,
that no preventive proceedings whatever, or proceedings against the very
prooerty, v;hich may h.ive been seized by the agent of a state, can be
sustained against such agent, because they would be substantially
against the state itself, in violation of the 11th amendment of the consti-
tion.
"That the courts of the Union cannot entertain a suit brought
against a state by an alien, or the citizen of another state, is not to be
CH. XXXVIII.] JUDICIARY JURISDICTION. 553
exempted from any action.^ The state does not, by
becoming a corporator, identify itself with the corpo-
ration. The bank, in such a case, is not the state,
although the state holds an interest in it. Nor will it
controverted. Is a suit, brought against an individual, for any cause
whatever, a suit against a state, in the sense of the constitution ?
"The nth amendment is the limitation of a power supposed to be
granted in the original instrument; and to understand accurately the
extent of the limitation, it seems proper to define the power that is
limited. The words of the constitution, so far as they respect this ques-
tion, are, ' The judicial power shall extend to controversies Ifotween two
or more states, between a state and citizens of another state, and be-
tween a state and foreign states, citizens, or subjects.' A subsequent
clause distributes the power previously granted, and assigns to the Su-
preme Court original jurisdiction in those cases, in which ' a state shall
be a party.' The words of the 11th amendment are, ' The judicial pow-
er of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States, by citizens of another state, or by citizens or subjects of a for-
eign state.'
"The bank of the United States contends, that in all cases, in which
jurisdiction depends on the character of the party, reference is made to
the party on the record, not to one, who may be interested, but is not
shown by the record to be a party. The appellants admit, that the ju-
risdiction of the court is not ousted by any incidental or consequential
interest, which a state may have in the decision to be made, but is to be
considered as a party, where the decision acts directly and immediately
upon the state, through its officers.
" If this question were to be determined on the authorty of English
decisions, it is believed, that no case can be adduced, where any person
has been considered as a party, who is not made so in the record. But
the court will not review those decisions, because it is thought a ques-
tion growing out of the constitution of the United States, requires rather
an attentive consideration of the words of that instrument, than of the
decisions of analogous questions by the courts of any other country.
" Do the provisions, then, of the American constitution, respectino-
controversies, to which a state may be a party, extend, on a fair con-
struction of that instrument, to cases in which the state is not a party on
the record ? The first in the enumeration, is a controversy between two
or more states. There are not many questions, in which a state would
1 United States Bank v. Planters' Bank of Georgia, 9 Wheat R. 904 ;
Bank of ComHh of Kentucky v. JVister, 3 Peters's Sup. R. 318.
VOL. III. 70
554 CONSTITUTION OF THE U. STATES. [bOOK III.
make any difference in the case, that the state has
the sole interest in the corporation, if in fact it creates
other persons corporators.^ An analogous case will
be found in the authority, given by an act of congress
be supposed to take a deeper or more immediate interest, than in those,
which decide on the extent of her territory. Yet the constitution, not
considering the state as a party to such controversies, if not plaintiff or
defendant on the record, has expressly given jurisdiction in those be-
tween citizens claiming lands under grants of different states. If each
state, in consequence of the influence of a decision on her boundary, had
been considered, by the framers of the constitution, as a party to that
controversy, the express grant of jurisdiction would have been useless.
The grant of it certainly proves, that the constitution does not consider
the state as a party in such a case. Jurisdiction is expressly granted, in
those cases only, where citizens of the same state claim lands under
grants of different states. If the claimants be citizens of different states,
the court takes jurisdiction for that reason. Still, the right of the state
to grant is the essential point in dispute ; and in that point the state is
deeply interested. If that interest converts the state into a party, there
is an end of the cause ; and the constitution will be construed to forbid
the circuit courts to take cognizance of questions, to v/hich it was
thought necessary expressly to extend their jurisdiction, even when the
controversy arose between citizens ofthe same state.
" We are aware, that the application of these cases may be denied,
because the title of the State comes on incidentally, and the appellants
admit the jurisdiction ofthe court, where its judgment does not act di-
rectly upon the property or interests ofthe state; but we deemed it of
some importance to show, that the framers of the constitution contem-
plated the distinction between cases, in which a state was interested, and
those, in which it was a party, and made no provision for a case of inter-
est, without being a party on the record. In cases, where a state is a
party on the record, the question of jurisdiction is decided by inspection.
If jurisdiction depend, not on this plain fact, but on the interest of the
state, what rule has the constitution given, by which this interest is to
be measured ? If no rule be given, is it to be settled by the court .^ If
so, the curious anomaly is presented of a court examining the whole
testimony of a cause, inquiring into, and deciding on, the extent of a
state's interest, without having a right to exercise any jurisdiction in the
case. Can this inquiry be made without the exercise of jurisdiction ?
"The next in the enumeration is a (.'ontroversy between a state and
the citizens of another state. Can this case arise, if the state be not a
1 Bank of CornHh of Kentucky v. msltr, '3 Peters's Sup. R. 318.
CH. XXXViri.] JUDICIARY JURISDICTIOX. 555
to the postmaster-general, to bring suits in his official
capacity. In such suits the United States are not
understood to be a [>arty, ahhough the suits solely re-
gard their interests. The postmaster-general does
party on the record ? If it can, the question recurs, what degree of in-
terest shall be sufficient to change the parties, and arrest the proceed-
ings against the individual ? Controversies respecting boundary have
lately existed between Virginia and Tennessee, between Kentucky and
Tennessee, and now exist between New- York and New-Jersey. Sup-
pose, while such a controversy is pending, the collecting officer of one
state should seize property for taxes belonging to a man, who supposes
himself to reside in the other state, and who seeks redress in the federal
court of that state, in which the officer resides. The interest of the
state is obvious. Yet it is admitted, that in such a case the action
would lie, because the officer might be treated as a trespasser, and the
verdict and judgment against him would not act directly on the property
of the slate. That it would not so act, may, perhaps, depend on cir-
cumstances. The officer may retain the amount of the taxes in his
hands, and, on the proceedings of the state against him, may plead in bar
the judgment of a court of competent jurisdiction. If this plea ought to
be sustained, and it is far from being certain, that it ought not, the judg-
ment so pleaded would have acted directly on the revenue of the state,
in the hands of its officer. And yet the argument admits, that the ac-
tion, in such a case, would be sustained. But, suppose, in such a case,
the party conceiving himself to be injured, instead of bringing an action
sounding in damages, should sue for the specific thing, while yet in
possession of the seizing officer. It being admitted in argument, that
the action sounding in damages would lie, we are unable to perceive
the line of distinction between that and the action of detinue. Yet the
latter action would claim the specific article seized for the tax, and
would obtain it, should the seizure be deemed unlawful.
" It would be tedious to pursue this part of the inquiry farther, and it
would be useless, because every person will perceive, that the same rea-
soning is applicable to all the other enumerated controversies, to which
a state may be a party. The principle may be illustrated by a reference
to those other controversies, where jurisdiction depends on the party.
But, before we review them, we will notice one, where the nature of the
controversy is, in some degree, blended with the character of the
party.
" If a suit be brought against a foreign minister, the Supreme Court
alone has original jurisdiction, and this is shown on the record. But,
suppose a suit to be brought, which affects the interest of a foreign min-
ister, or by which the person of his secretary, or of his servant, is arrest-
556 CONSTITUTION OF THE U. STATES. [bOOK III.
not, in such cases, sue under the clause givmg juris-
diction, ^' in controversies, to which the United States
shall be a party ; " but under the clause extending
the jurisdiction to cases arising under the laws of the
United States.^
ed. The minister does not, by the mere arrest of his secretary, or his
servant, become a party to this suit, but the actual defendant pleads to
the jurisdiction of the court, and asserts his privilege. If the suit affects
a foreign minister, it must be dismissed, not because he is a party to it,
but because it affects him. The language of the constitution in the two
cases is different. This court can take cognizance of all cases ' affect-
ing' foreign ministers ; and, therefore, jurisdiction does not depend on
the party named in the record. But this language changes, when the
enumeration proceeds to states. Why this change? The answer is
obvious. In the case of foreign ministers, it was intended, for reasons,
■which all comprehend, to give the national courts jurisdiction over all
cases, by which they were in any manner affected. In the case of
States, whose immediate or remote interests were mixed up with a mul-
titude of cases, and who might be affected in an almost infinite variety
of ways, it was intended to give jurisdiction in those cases only, to which
they were actual parties.
" In proceeding with the cases, in which jurisdiction depends on the
character of the party, the first in the enumeration is, 'controversies to
which the United States shall be a party.' Does this provision extend
to the cases, where the United States are not named in the record, but
claim and are actually entitled to, the whole subject in controversy?
Let us examine this question. Suits brought by the postmaster-general
are for money due to the United States. The nominal plaintiff has no
interest in the controversy, and the United States are the only real party.
Yet, these suits could not be instituted in the courts of the Union, under
that clause, which gives jurisdiction in all cases, to which the United
States are a party ; and it was found necessary to give the court juris-
diction over them, as being cases arising under a law of tlie United
States.
"The judicial power of the Union is also extended to controversies
between citizens of different States ; and it has been decided, that the
character of the parties must be shown on the record. Does this pro-
vision depend onjthe character of those, whose interest is litigated, or of
those, who are parties on the record ? In a suit, for example, brought
by or against an executor, the creditors or legatees of his testator are
1 Oshorn v. Bank of United Slates, 9 Wheat. R. 855, 856 ; Postmaster
General v. Early, 12 Wheat. R. 130, 149.
CH. XXXVIIJ.] JUDICIARY JURISDICTION. 5'57
§ 1681. The reasoning, by which the general doc-
trine is maintained, is to the following effect. It is a
sound principle, that, when a government becomes a
partner in any trading company, it divests itself, so far
the persons really concerned in interest ; but it has never been suspected,
that, if the executor be a resident of another state, the jurisdiction of
the federal courts could be ousted by the fact, that the creditors or lega-
tees were citizens of the same state with the opposite party. The uni-
versally received construction in this case is, that jurisdiction is neither
given nor ousted by the relative situation of the parties concerned in in-
terest, but by the relative situation of the parties named on the record.
Why is this construction universal ? No case can be imagined, in
which the existence of an interest out of the party on the record is more
unequivocal, than in that, which lias been just stated. Why, then, is it
universally admitted, that this interest in no manner affects the jurisdic-
tion of the court? The plain and obvious answer is, because the juris-
diction of the court depends, not upon this interest, but upon the actual
party on the record. Were a state to be the sole legatee, it will not, we
presume, be alleged, that the jurisdiction of the court, in a suit against
the executor, would be more affected by this fact, than by the fact, that
any other person, not suable in the courts of the Union, was the sole
legatee. Yet, in such a case, the court Avould decide directly and imme-
diately on the interest of the state.
" This principle might be further illustrated by showing, that jurisdic-
tion, where it depends on the character of the party, is never conferred
in consequence of the existence of an interest in a party not named ; and
by showing that, under the distributive clause of the 2d section of the
3d article, the Supreme Court could never take original jurisdiction, in
consequence of an interest in a party not named in the record.
" But the principle seems too well established to require, that more
time should be devoted to it. It may, we think, be laid down as a rule,
which admits of no exception, that, in all cases where jurisdiction de-
pends on the party, it is the party named in the record. Consequently,
the Hth amendment, which restrains the jurisdiction granted by the con-
stitution over suits against states, is, of necessity, limited to those suits,
in which a state is a party on the record. The amendment has its full
effect, if the constitution be construed, as it Avould have been construed
had the jurisdiction of the court never been extended to suits brought
against a state, by the citizens of another state, or by aliens. The state
not being a party on the record, and the court having jurisdiction over
those, who are parties on the record, the true question is, not one of ju-
risdiction, but whether, in the exercise of its jurisdiction, the court ought
to make a decree against the defendants ; whether they are to be con-
sidered as having a real interest, or as behig only nominal parties."
558 CONSTITUTION OF THE U. STATES. [bOOK III.
as concerns the transactions of that company, of its
sovereign character, and takes that of a private citizen.
Instead of communicating to the company its privi-
leges and prerogatives, it descends to a level with
those, with whom it associates itself, and takes the
character, which belongs to its associates, and to the
business, which is transacted. Thus, many states in
the Union, which have an interest in banks, are not
suable even in their own courts. A state, which
establishes a bank, and becomes a stockholder in it,
and gives it a capacity to sue and be sued, strips it-
self of its sovereign character, so far as respects the
transactions of the bank, and waives all the privileges
of that character. As a member of a corporation, a
government never exercises its sovereignty. It acts
merely, as a corporator; and exercises no other pow-
er in the management of the affairs of the corporation,
than are expressly given by the incorporating act.
The United States held shares in the old bank of the
United States ; but the privileges of the government
were not imparted by that circumstance to the bank.
The United States were not a party to suits, brought
by or against the bank, in the sense of the constitution.
So, with respect to the present bank, suits brought
by or against it are not understood to be brought by
or against the United States. The government, by
becoming a corporator, lays down its sovereignty, so
far as respects the transactions of the corporation ;
and exercises no power or privilege, which is not
derived from the charter.^ The reasoning admits of
further illustration. A corporation is itself, in legal
contemplation, an artificial person, having a distinct
1 United States Bank v. Planters' Bank of Georgia, 9 Wheat. R. 907,
908.
CH. XXXVIIt.] JUDICIARY JURISDICTION. 559
and independent existence from that of the persons
composing it. • It is this personal, poHtical, and arti-
ficial existence, which gives it the character of a body
politic or corporate, in which may be vested peculiar
powers and attributes, distinct and different from
those belonging to the natural persons composing it.^
Thus, the corporation may be perpetual, although the
individuals composing it may in succession die. It
may have privileges, and immunities, and functions,
which do not, and cannot lawfully belong to individu-
als. It may exercise franchises, and transact business
prohibited to its members, as individuals. The ca-
pacity to sue and be sued belongs to every corpo-
ration ; and, indeed, is a function incident to it,
independent of any special grant, because necessary
to its existence.^ It sues and is sued, however, not
in the names of its members, but in its own name, as
a distinct person. It acts, indeed, by and through its
members, or other proper functionaries ; but still the
acts are its ov/n, and not the private acts of such
members or functionaries. The members are not
only not parties to its suits in any legal sense, but they
may sue it, or be sued by it, in any action, exactly as
any stranger may sue it, or be sued by it. A state
may sue a bank, in which it is a stockholder, just as
any other stockholder may sue the same bank. The
United States may sue the bank of the United States,
and entide themselves to a judgment for any debt due
to them ; and they may satisfy the execution, issuing
on such a judgment, out of any property of the bank.
Now it is plain, that this could not be done, if the
state, or the United States, or any other stockholder
i See 1 Black. Coram, ch. 18, p. 467, 471, 475, 477.
2 1 Black. Comm. 475, 476.
560 CONSTITUTION OF THE U. STATES. [bOOK III.
were deemed a party to the record. It would be
past all legal comprehension, that a party might sue
himself, and be on both sides of the controversy. So,
that any attempt to deem a state a party to a suit,
simply because it has an interest in a suit, or is a
stockholder in a corporation on the record, would be
to renounce all ordinary doctrines of law applica-
ble to such cases. The framers of the constitution
must be presumed, in treating of the judicial depart-
ment, to have used language in the sense, and with
the limitations belonging to it in judicial usage. They
must have spoken according to known distinctions,'
and setded rules of interpretation, incorporated into
the very elements of the jurisprudence of every state
in the Union. '
^ 1 682. It may, then, be laid down, as a rule, which
admits of no exception, that in all cases under the con-
stitution of the United States, where jurisdiction de-
pends upon the party, it is the party named on the
record. ConsequenUy the amendment above referred
to, which restrains the jurisdicdon granted by the con-
stitution over suits against states, is of necessity limited
to those suits, in which a state is a party on the record.
The amendment has its full effect, if the constitution is
construed, as it would have been construed, had the
jurisdiction never been extended to suits brought against
a state by the citizens of another state, or by aliens.^
§ 1683. It has been doubted, whether this amend-
ment extends to cases of admiralty and maritime juris-
1 Oshorn v. United States Bank, 9 Wheat. R. 857, 858 ; The Gover-
nor of Georgia v. Madrazo, 1 Peters's Sup. R. 110, 122. — A state may-
be properly deemed a party, when it sues, or is sued by process, by or
against the governor ot^the state in his official capacity. The Governor
of Georgia v. Madrazo, 1 Peters's Sup. R. 110, 121 to 124.
CH. XXXVIII.] JUDICIARY JURISDICTION. 561
diction, where the proceeding is m rem, and not in per-
sonam. There, the jurisdiction of the court is founded
upon the possession of the thing; and if the state
should interpose a claim for the property, it does not
act merely in the character of a defendant, but as an
actor. Besides; the language of the amendment is,
th -t *• the judicial power of the United States shall not
be construed to extend to any suit in law or equity.''
But a suit in the admiralty is not, correctly speaking, a
suit in law, or in equity ; but is often spoken of in
contradistinction to both.^
§ 1684. Next. "Controversies between citizens of
different states." Although the necessity of this power
may not stand upon grounds quite as strong, as some
of the preceding, there are high motives of state policy
and public justice, by which it can be clearly vindicated.
There are many cases, in which such a power may be
indispensable, or in the highest degree expedient, to
carry into effect some of the privileges and immunities
conferred, and some of the prohibitions upon states ex-
pressly declared, in the consdtution. For example ; it
is declared, that the citizens of each state shall be enti-
tled to all the privileges and immunities of citizens of
the several states. Suppose an attempt is made to
evade, or withhold these privileges and immunities,
would it not be right to allow the party aggrieved an
opportunity of claiming them, in a contest with a citizen
of the state, before a tribunal, at once national and im-
partial ? ^ Suppose a state should pass a tender law,
1 See United States v. i5%/j/, 3 Hall's. Law Journal, 197, 225 ; The
Governor of Georgia v. J\ Fad razo, 1 Peters's Sup. R. ]24, and Id. 128,
129, 130, 131, 132, 133, the Opinion of Mr. Justice Johnson ; United
States V. Peters, 5 Cranch's R. 1 15, 139, 140.
2 The Federalist, No. 80 ; Id. No. 42. -
VOL. III. 71
562 CONSTITUTION OF THE l/. STATES. [BOOK III.
or law impairing the obligation of private contracts, or
should in the course of its legislation grant unconstitu-
tional preferences to its own citizens, is it not clear,
that the jurisdiction to entorce the obligations of the
constitution in such cases ought to be confided to the
national tribunals ? These cases are not purely imag-
inary. They have actually occurred ; and may again
occur, under peculiar circumstances, in the course of
state legislation.^ What was the fact under the con-
federation? Each state was obliged to acquiesce in
the degree of justice, which another state might choose
to yield to its citizens.^ There was not only danger of
animosides growing up from this source ; but, in point
of fact, there did grow up retaliatory legislation, to meet
such real or imagined grievances.
§ 1685. Nothing can conduce more to general har-
mony and confidence among all the states, than a con-
sciousness, that controversies are not exclusively to be
decided by the state tribunals ; but may, at the elec-
tion of the party, be brought before the national tribu-
nals. Besides ; it cannot escape observadon, that the
judges in different states hold their ofiTices by a very
diff'erent tenure. Some hold during good behaviour;
some for a term of years ; some for a single year; some
are irremovable, except upon impeachment ; and others
may be removed upon address of the legislature. Under
such circumstances it cannot but be presumed, that
there may arise a course of state policy, or state legis-
lation, exceedingly injurious to the interest^ of the citi-
1 See 2 Elliot's Debates, 391, 39.2, 401, 406 ; 3 Elliot's Debates, 142,
144, 277. 282.
2 See Ckisholm v. Gcor<r{a, 2 Dall. R. 474, 475, 476, per Mr. Chief
Justice Jay ; The Federalist, No. 80; 3 Elliot's Debates, 142, 144, 277,
282 ; Martin v. Hunter, 1 Wheat. R. 346, 347.
CH. XXXVIII.] JUDICIARY Jl^RISDICTlON. 563
zens of other states, both as to real and personal prop-
erty. It would require an uncommon exercise of can-
dour or credulity to allirm, that in cases of this sort all
the state tribunals would be wdiolly without state pre-
judice, or state feelings ;- or, that they would be as ear-
nest in resisting the encroachments of state authority
upon the just rights, and interests of the citizens of
other states, as a tribunal differently constituted, and
wholly independent of state authority. And if justice
should be as fairly and as firmly administered in the
former, as in the latter, still the mischiefs would be
most serious, if the public opinion did not indulge such
a belief. Justice, in cases of this sort, should not only
be above all reproach, but above all suspicion. The
sources of state irritations and state jealousies are suffi-
ciently numerous, without leaving open one so copious
and constant, as the belief, or the dread of waong in
the administration of state justice.^ Besides ; if the
public confidence should continue to follow the state
tribunals, (as in many cases it doubdess will,) the pro-
vision will become inert and harmless ; for, as the party
will have his election of the forum, he w ill not be in-
clined to desert the state courts, unless for some sound
reason, founded either in the nature of his cause, or in
the influence of state prejudices.^ On the other hand,
there can be no real danger of injustice to the other
side in the decisions of the national tribunals ; because
the cause must still be decided upon the true principles
of the local law, and not by an}^ foreign jurisprudence.^
1 See The Federalist, No. 80 ; 4 Dall. 474, 475, 471), per Mr. Chief
Justice Jay ; I Kent's Comm. Lect. 14, p. 27G, (2 edit. p. 296) ; 3 Elliot's
Debates, 141, 142,144.
2 See Rawle on Const, ch. 31, p. 204 ; 3 Elliot's Deb. 381, 382.
3 2 Elliot's Debates, 401, 402, 406.
564 CONSTITUTION OF THE U. STATES. [bOOK III.
There is another circumstance of no small importance,
as a matter of pohcy ; and that is, the tendency of such
a power to increase the confidence and credit between
the commercial and ai^ricultural states. No man can
be insensible to the value, in promoting credit, of the
belief of there being a prompt, efficient, and impartial
administration of justice in enforcing contracts.^
§ 1686. Such are some of the reasons, which are
supposed to have influenced the convention in delegat-
ing jurisdiction to the courts of the United States in
cases between citizens of different states. Probably
no part of the judicial power of the Union has been of
more practical benefit, or has given more lasting satis-
faction to the people. There is not a single state,
which has not at some time felt the influence of this
conservative power ; and the general harmony, which
exists between the state courts and the national courts,
in the concurrent exercise of their jurisdiction in cases
between cidzens of different states, demonstrates the
utiUty, as well as the safety of the power. Indeed ; it
is not improbable, that the existence of the power has
operated, as a silent, but irresistible check to undue
state legislation ; at the same time, that it has cherished
a mutual respect and confidence betNveen the state and
nadonal courts, as honourable, as it has been benefi-
cent.
^ 1687. The next inquiry growing out of this part of
the clause is, who are to be deemed citizens of differ-
ent states within the meaning of it. Are all persons
born within a state to be always deemed citizens of
that state, notwithstanding any change of domicil ; or
does their citizenship change with their change of dom-
1 2 Elliot's Debates, 392, 40G ; 3 Elliufs Debates, 144 ; Id. 282.
CH. XXXVIII.] JUDICIARY JURISDICTION. 565
icil? The answer to this inquiry is equally plain and
satisfactory. The constitution having declared, that
the citizens of each state shall be entitled to all privi-
leges and immunities of citizens in the several states,
every person, who is a citizen of one state, and removes
into another, with the intention of taking up his resi-
dence and inhabitancy there, becomes ipso facto a citi-
zen of the state, where he resides; and he then
ceases to be a citizen of the state, from which he has
removed his residence. Of course, when he gives up
his new residence or domicil, and returns to his native,
or other state residence or domicil, he reacquires the
character of the latter. What circumstances shall con-
stitute such a change of residence or domicil, is an in-
quiry, more properly belonging to a treatise upon pubhc
or municipal law, than to commentaries upon constitu-
tional law. In general, however, it may be said, that a
removal from one state into another, animo manendi, or
with a design of becoming an inhabitant, constitutes a
change of domicil, and of course a change of citizen-
ship. But a person, who is a native citizen of one
state, never ceases to be a citizen thereof, until he has
acquired a new citizenship elsewhere. Residence in a
foreign country has no operation upon his character, as
a cidzen, although it may, for purposes of trade and
commerce, impress him with the character of the coun-
try.^ To change allegiance is one thing ; to change
inhabitancy is quite another thing. The right and the
power are not co-extensive in each case.^ Every citi-
zen of a state is ipso facto a citizen of the United
States.*
1 See 1 Kent's Comm. Lect. 4.
2 See Rawle on Const, ch. 9, p. 87 to 100. .
3 Rawle on Const, ch. 9, p. 85, 86.
566 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1688. And a person, who is a naturalized citizen
of the United States, by a Uke residence in any state in
the Union, becomes ipso facto a citizen of that state.
So a citizen of a territory of the Union by a Uke resi-
dence acquires the character of the state, where he re-
sides.^ But a naturalized citizen of the United States,
or a citizen of a territory, is not a citizen of a state,
entitled to sue in the courts of the United States in
virtue of that character, while he resides in any such
territory, nor until he has acquired a residence or dom-
icil in the particular state.^
^ 1689. A corporation, as such, is not a citizen of a
state in the sense of the constitution. But, if all the
members of the corporation are citizens, their charac-
ter will confer jurisdiction ; for then it is substantially a
suit by citizens suing in their corporate name.^ And a
citizen of a state is entitled to sue, as such, notwith-
standing he is a trustee for others, or sues in autre droit,
as it is technically called ; that is, as representative of
another. Thus, a citizen may sue, who is a trustee at
law, for the benefit of the person entitled to the trust.
And an administrator, and executor may sue for the
benefit of the estate, which they represent ; for in each
of these cases it is their personal suit.^ But if citizens,
who are parties to a suit, are merely nominally so ; as,
for instance, if magistrates are officially required to
1 See Gassiesv. Ballon, 6 Peters's Sup. R. 761.
2 Hepburn v. Elszey, 2 Crancli's 448; Corporation of JVew- Orleans v.
Winter, 1 Wheat. R. 91 ; 1 Kent's Coram. Lect. 17, p. 300, (2 edition,
p. 384.)
3 Hope Insurance Company v. Boardman, 5 Cranch, 57 ; Bank of Uni-
ted States v. Deveaux, 5 Cranch, 61; United States w. Planters^ Bank,
9 Wheat. R. 410.
4 Chappedelaine v. De Cheneaux, 4 Cranch, 306; Bank of United
States V. Deveaux, 5 Cranch, 61 ; Childress v. Emory, 8 Wheat. R. 668.
CH. XXXVIII.] 'judiciary JURISDICTION. 567
allow suits to be brought in their names for the use or
benefit of a citizen or alien, the latter are deemed the
substantial parties entitled to sue.^
§ 1690. Next. " Controversies between citizens of
the same state, claiming lands under grants of different
states." This clause was not in the first draft of the
constitution, but was added without any known objec-
tion to its propriety.^ It is the only instance, in which
the constitution directly contemplates the cognizance
of disputes between citizens of the same state ; ^ but
certainly not the only one, in which they may indirectly
upon constitutional questions have the benefit of the
judicial power of the Union.^ The Federalist has re-
marked, that the reasonableness of the agency of the
national courts in cases, in w^hich the state tribunals
cannot be supposed to be impartial, speaks for itself.
No man ought certainly to be a judge in his own cause,
or in any cause, in respect to which he has the least
interest or bias. This principle has no inconsiderable
weight in designating the federal courts, as the proper
tribunals for the determination of controversies between
different states and their citizens. And it ought to have
the same operation in regard to some cases between
citizens of the same state. Claims to land under grants
of different states, founded upon adverse pretensions
of boundary, are of this description. The courts of
neither of the granting states could be expected to be
unbiassed. The laws may have even prejudged the
question ; and tied the courts down lo decisions in fa-
vour of the grants of the state, to which they belonged.
1 Brown v. Strode, 5 Cranch, 303.
2 Journal of Convention, 22G, 300.
3 The Federalist, No. 80.
4 Cohens v. Virginia, 6 Wheat. R. 390, 391, 392.
568 CONSTITUTION OF THE U. STATES. [bOOK III.
And where this has not been done, it would be natural,
that the judges, as men, should feel a strong predilec-
tion for the claims of their own government.^ And, at
all events, the providing of a tribunal, having no possible
interest on the one side, more than the other, would
have a most salutary tendency in quieting the jealousies,
and disarming the resentments of the state, whose
grant should be held invalid. This jurisdiction attaches
not only to grants made by different states, which were
never united; but also to grants made by different
states, which were originally united under one jurisdic-
tion, if made since the separation, although the origin
of the tide may be traced back to an antecedent pe-
riod.^
^ 1691. Next. "Controversies between a state, or
the citizens thereof, and foreign states, citizens, or sub-
jects." The FederaHst ^ has vindicated this provision
in the following brief, but powerful manner: "The
peace of the whole ought not to be left at the disposal
of a part. The Union will undoubtedly be answerable
to foreign powers for the conduct of its members.
And the responsibility for an injury ought ever to be
accompanied with the faculty of preventing it. As the
denial or perversion of justice by the sentences of
courts is with reason classed among the just causes of
war, it will follow, that the federal judiciary ought to.
have cognizance of all causes, in which the citizens of
other countries are concerned. This is not less essen-
tial to the preservation of the pubhc faith, than to the
1 The Federalist, No. 80. See also Mr. Chief Justice Jay's Remarks,
4 Dall. 47G, and ante vol.3, § 1632.
2 Town ofPawlet v. Clarke., 9 Cranch, 292 ; Colson v. Lewis, 2 Wheat.
R. 377.
3 The Federalist, No. 80. See also 3 Elliot's Debates, 283 ; 2 Elliot's
Debates, 391.
CH. XXXVIII.] JUDICIARY JURISDICTION. 569
security of the public tranquillity. A distinction may
perhaps be imagined between cases arising upon trea-
ties and the laws of nations, and those, which may
stand merely on the footing of the municipal law. The
former kind may be supposed proper for the federal
jurisdiction ; the latter for that of the states.' But it is
at least problematical, whether an unjust sentence
against a foreigner, where the subject of controversy
was wholly relative to the lex loci, would not, if unre-
dressed, be an aggression upon his sovereign as well
as one, which violated the stipulations of a treaty, or
the general law of nations. And a still greater objec-
tion to the distinction would result from the immense
difficulty, if not impossibility, of a practical discrimina-
tion betw^een the cases of one complexion, and those of
the other. So great a proportion of the controversies,
in which foreigners are parties, involve national ques-
tions, that it is by far the most safe, and most expedient,
to refer all those, in which they are concerned, to the
national tribunals.^'
^ 1692. In addition to these suggestions, it may be
remarked, that it is of great national importance to ad-
vance public, as well as private credit, in our inter-
course with foreign nations and their subjects. Nothing
can be more beneficial in this respect, than to cre-
ate an impartial tribunal, to which they may have re-
sort upon all occasions, when it may be necessary to
ascertain, or enforce their rights.^ Besides ; it is not
1 3 Elliot's Debates, 142, J 43, 144, 28'>, 283. — It is notorious, that
this jurisdiction has been very satisfactory to foreign nations and their
subjects. Nor have the dangers of state prejudice, and state attachment
to local interests, to the injury of foreigners, been wholly imaginary.
It has been already stated in another place, that the debts due to British
subjects before the revolution, were never recovered, until after the adop-
VOL. III. 72
570 CONSTITUTION OF THE U. STATES. [bOOK HI.
wholly immaterial, that the law to be administered in
cases of foreigners is often very distinct from the
mere municipal code of a state, and dependent upon
the law merchant, or the more enlarged consideration
of international rights and duties, in a case of conflict
of the foreign and domestic laws.^ And it may fairly
be presumed, that the national tribunals will, from the
nature of their ordinary functions, become better ac-
quainted with the general principles, which regulate
subjects of this nature, than other courts, however
enlightened, which are rarely required to discuss them.
§ 1693. In regard to controversies between an Amer-
ican and a foreign state, it is obvious, that the suit must,
on one side at least, be wholly voluntary. No foreign
state can be compelled to become a party, plaindff or
defendant, in any of our tribunals.^ If, therefore, it
chooses to consent to the institution of any suit, it is its
consent alone, which can give effect to the jurisdicdon
of the court. It is certainly desirable to furnish some
peaceable mode of appeal in cases, w^here any contro-
versy may exist between an American and a foreign
state, sufficiently important to require the grievance to
be redressed by any other mode, than through the in-
strumentaUty of negotiations.^
^ 1694. The inquiry may here be made, who are to
be deemed aliens entided to sue in the courts of the
United States. The general answer is, any person,
who is not a citizen of the United States. A foreigner,
who is naturalized, is no longer entitled to the character
tion of the constitution, by suits brouglit in tlie national courts. See
Ware v. Hijlton, 3 Dall. R. 191).
1 See 1 Tucker's Black. Comm. App. 421 ; 3 Elliot's Deb. 282, 283
2 See 2 Elliot's Deb. 391, 407 ; Foster v. JVelson, 2 Peters's R. 254,
307.
3 See 3 Elliot's Debates, 282, 283.
CII. XXXVni.] JUDICIARY JURISDICTION. 571
of an alien.^ And when an alien is the substantial
party, it matters not, whether he is a suitor in his own
right; or whether he acts, as a trustee, or personal rep-
resentative ; or whether he is compellable by the local
law to sue through some official organ.^ A foreign
corporation, established in a foreign country, all of
whose members are aliens, is entided to sue in the
same manner, that an alien may personally sue in the
courts of the Union.^ It is not sufficient to vest the
jurisdiction, that an alien is a party to the suit, unless
the other party be a citizen."* British subjects, born
before the American revolution, are to be deemed aliens ;
and may sue American citizens, born before the revo-
lution, as well as those born since that period. The
revolution severed the ties of allegiance ; and made the
inhabitants of each country aliens to each other.^ In
relation to aliens, however, it should be stated, that
they have a right to sue only, while peace exists be-
tween their country and our own. For if a war breaks
out, and they thereby become alien enemies, their right
to sue is suspended, until the return of peace.^
1 Mr. Tucker supposes, that the several states still retain the power
of admitting aliens to become denizens of the state ; but that they do
not thereby become citizens. (1 Tuck. Black. Comm. App. 305.) What
he means by denizens, he has not explained. If he means, that the
states may naturalize, so far as to make an alien a citizen of the state,
that may be well questioned. If he means only, that they may enable
aliens to hold lands, and p .joy certain other qualified privileges within
the state, that will not be denied.
2 Chnppedelaine v. De Chenaux, 4 Cranch, 306; Brown v. Slrode,
5 Cranch, R. 303.
3 Society for Propagating the Gospel v. Toivn of JVew- Haven, 8 Wheat.
R. 464.
4 Jackson v. Tweniyman, 2 Peters's Sup. R. 136.
5 Dawson^s Lessee v. Godfrey, 4 Cranch, 321 ; Blight\<} Lessee v. Ro-
chester, 7 Wheat. R. 535 ; Inglis v. Trustees of Sailorh Snug Harbour,
3 Peters's Sup. R. 126.
6 1 Kent's Comm. Lect. 3, p. 64, 65, (2 edition, p. 68, 69.)
572 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1695. We have now finished our review of the
classes of cases, to which the judicial power of the
United States extends. The next inquiry naturally
presented is, in what mode it is to be exercised, and
in what courts it is to be vested. The succeeding
clause of the constitution answers this inquiry. It is in
the following words. " In all cases affecting ambassa-
" dors, other public ministers, and consuls, and those, in
" which a state shall be a party, the Supreme Court
" shall have original jurisdiction. In all the other cases
" before mentioned, the Supreme Court shall have ap-
^'pellate jurisdiction, both as to law and fact, with such
" excepdons and under such regulations, as the con-
"gress shall make."^
^ 1696. The first remark arising out of this clause
is, that, as the judicial power of the United States ex-
tends to all the cases enumerated in the constitution, it
may extend to all such cases in any form, in which ju-
dicial power may be exercised. It may, therefore, ex-
tend to them in the shape of original, or appellate juris-
diction, or both ; for there is nothing in the nature of
the cases, which binds to the exercise of the one in
1 In the first draft of the constitution, the words stood thus. "In
cases of impeachment, cases affecting ambassadors, other public minis-
ters, and consuls, and those, in which a state shall be a party, this juris-
diction (of the Supreme Court) shall be original. In all other cases be-
fore mentioned, it shall he appdlate^ with such exceptions and under such
regulations, as the legislature may make. The legislature may assign
any part of the jurisdiction above mentioned, (except the trial of the
president of the United States) in the manner and under the limitations,
which it shall think proper, to such inferior courts, as it shall constitute
from time to time." It was varied to its present form by successive
votes, in which there was some difference of opinion. Journal of Con-
vention, p. '<>2r), 227, 291), :300, 301.
CH. XXXVIIl.] JUDICIARY JURISDICTION. 573
preference to the othcr.^ But it is clear, Irom the lan-
guage of the constitution, that, in one form or the other,
it is absolutely obligatory upon congress, to vest all the
jurisdiction in the national courts, in that class of cases
at least, where it has declared, that it shall extend to
« a// cases." 2
^ 1697. In the next place, the jurisdiction, which is
by the constitution to be exercised by the Supreme
Court in an original form, is very limited, and extends
only to cases affecting ambassadors, and other public
ministers, and consuls, and cases, where a state is a
party. iVnd congress cannot constitutionally confer on
it any other, or further original jurisdiction. This is
one of the appropriate illustrations of the rule, that
the affirmation of a power in particular cases, excludes
it in all others. The clause itself would otherwise be
wholly inoperative and nugatory. If it had been in-
tended to leave it to the discretion of congress, to ap-
portion the judicial power between the supreme and
inferior courts, according to the will of that body, it
would have been useless to have proceeded further,
than to defme the judicial power, and the tribunals, in
which it should be vested. Affirmative w^ords often,
in their operation^ imply a negative of other objects,
than those affirmed ; and in this case a negative, or ex-
clusive sense, must be given to the Vvords, or they have
no operation at all. If the solicitude of the convention,
respecting our peace with foreign powers, might in-
duce a provision to be made, that the Supreme Court
should have original jurisdiction in cases, which might
1 Martin v. Hunter, 1 Wheat. R. 333, 337, 338 ; Osborn v. Bank of
United States, 9 Wheat. R. 820,821.
2 Id. p. 328, 330, 336. — Upon this subject there is considerable dis«
cussion, in the case of .MaHin v. Hunter, (1 Wheat. R. 304, 313.)
574 COXSTITUTIOX OF THE U. STATES. [bOOK III.
be supposed to affect them ; yet the clause would have
proceeded no further, than to provide for such cases,
unless some further restriction upon the powers of
congress had been intended. The direction, that the
Supreme Court shall have appellate jurisdiction in all
cases, with such exceptions, as congress shall make,
will be no restriction, unless the w^ords are to be deem-
ed exclusive of original jurisdicdon.^ And accordingly,
the doctrine is firmly established, that the Supreme
Court cannot constitutionally exercise any original ju-
risdicdon, except in the enumerated cases. If con-
gress should confer it, it would be a mere nullity.^
§ 1698. But although the Supreme Court cannot
exercise original jurisdiction in any cases, except those
specially enumerated, it is certainly competent for con-
gress to vest in any inferior courts of the United
States original jurisdicUon of all other cases, not thus
specially assigned to the Supreme Court ; for there is
nothing in the consdtudon, which excludes such inferior
courts from the exercise of such original jurisdiction.
Original jurisdiction, so far as the constitudon gives a
rule, is co-extensive with the judicial power ; ^nd exr
cept, so far as the constitution has made any ^fe tiiwtien-^ ^.
of it among the courts of the United States, Vremains
1 Marhunjv. Madison, 1 Crancli, R. 174, 175; Wiscart v. Dauchy^
3 Dall. R. 321 ; Cohens v. Virginia, G Wheat. R. 392 to 395; Id. 400,
401 ; Oshorn v. Ba7ik of United States, 9 Wheat. R. 820, 821.
2 Id. ibid. 1 Kent Comra. Lect. 1.5, p. 294, 301, (2d edition, 314, 322 ;)
Wiscart v. Dauchy, 3 Dall. R. 321. — Congress, by tljc judiciary act of
1789, ch. 20, § 13, did confer on the Supreme Court the authority to
issue writs of mandamus, in cases warranted by the principles and
usages of law, to persons holding office under the authority of the
United States. But the Supreme Court, in 1801, held the delegation of
power to be a mere nullity. Marhury v. Madison, 1 Crancli, R.^LSa 173
to 180.
CH. XXXVIII.] JUDICIARY JURISDICTION. 575
to be exercised in an original, or appellate form, or both,
as congress may in their wisdom deem fit. Now, the
constitution has made no distincdon, except of the ori-
ginal and appellate jurisdiction of the Supreme Court.
It has no where insinuated, that the inferior tribunals
shall have no original jurisdiction. It has no where af-
firmed, that they shall have appellate jurisdiction. Both
are left unrestricted and undefined. Of course, as the
judicial power is to be vested in the supreme and
inferior courts of the Union, both are under the entire
control and reguladon of congress.^
^ 1699. Indeed, it has been a matter of much ques-
tion, whether the grant of original jurisdiction to the
Supreme Court, in the enumerated cases, ought to be
construed to give to that court exclusive original juris-
diction, even of those cases. And it has been contended,
that there is nothing in the constitution, which warrants
the conclusion, that it was intended to exclude the in-
ferior courts of the Union from a concurrent original
jurisdicdon.^ The judiciary act of 1789, (ch. 20,
§ 11, 13,) has manifestly proceeded upon the supposi-
tion, that the jurisdicdon was not exclusive ; but, that
concurrent original jurisdicdon in those cases might be
vested by congress in inferior courts.^ It has been
strongly intimated, indeed, by the highest tribunal, on
more than one occasion, that the original jurisdiction of
the Supreme Court in those cases is exclusive;'^ but
1 Martin v. Hunter, 1 Wheat. R. 337, 338 ; Osborn v. Bank of Unit-
ed Slates, 9 Wheat. R. 820, 821 ; Cohens v. Virginia, 6 Wheat. R. 395,
396.
2 United States v. Ravara, 2 Dall. R. 297 ; Cliisholm v. Georgia, 2
Uall. R. 419, 431, 43(), per Iredell J. Sergeant on Const, ch. 2.
a 1 Kent. Comm. Lect. 15, p. 294, 295, (2d edition, p. 314, 315.)
4 See Marbury v. Madison, 1 Cranch, R. 137 ; Martin v. Hunter
576 CONSTITUTION OF THE U. STATES. [bOOK III.
the question remains to this hour without any authori-
tative decision.^
§ 1700. xlnother question of a very different nature
is, whether the Supreme Court can exercise appellate
jurisdiction in the class of cases, of which original
jurisdiction is delegated to it by the constitution ; in
other words, whether the original jurisdiction excludes
the appellate ; and so, e converso, the latter implies a
negative of the former. It has been said, that the very
distinction taken in the constitution, between original
and appellate jurisdiction, presupposes, that where the
one can be exercised, the other cannot. For example,
since the original jurisdiction extends to cases, where
a state is a party, this is the proper form, in which such
(»ases are to be brought before the Supreme Court ;
and, therefore, a case, where a state is a party, cannot
be brought before the court, in the exercise of its ap-
pellate jurisdiction ; for the affirmative here, as well as
in the cases of original jurisdiction, includes a negative
of the cases not enumerated.
^ 1701. If the correctness of this reasoning w^ere
admitted, it would establish no more, than that the
Supreme Court could not exercise appellate jurisdic-
tion in cases, where a state is a party. But it would
by no means establish the doctrine, that the judicial
power of the United States did not extend, in an ap-
pellate form, to such cases. The exercise of appellate
jurisdiction is far from being limited, by the terms of the
constitution, to the Supreme Court. There can be no
1 Wheat. R. 337, 338 ; Oshorn v. Bank of United States, 9 Wheat. R.
820, 821 ; J Kent's Comrn. Lect. 15, p. 294, 295, (2cl edition, p. 314,315 ;)
Cohens v. Virginia, G Wheat. R. 395, 396, 397.
1 United Slates v. Or/eg-a, 11 Wheat. R. 467; Cohens v. Virginia,
6 Wheat R. 396, 397.
CH. XXXVIir.] JUDICIARY JURISDICTION. 577
doubt, that congress may create a succession of infe-
rior tribunals, in each of which it may vest appellate, as
well as original jurisdiction. This results from the
very nature of the delegation of the judicial power in
the constitution. It is delegated in the most general
terms ; and may, therefore, be exercised under the au-
thority of congress, under every variety of form of
original and appellate jurisdiction. There is nothing in
the instrument, which restrains, or limits the power ;
and it must, consequently, subsist in the utmost latitude,
of which it is in its nature susceptible.^ The result
then would be, that, if the appellate jurisdiction over
cases, to which a state is a party, could not, according
to the terms of the constitution, be exercised by the
Supreme Court, it might be exercised exclusively by
an inferior tribunal. The soundness of any reasoning,
which would lead us to such a conclusion, may well be
questioned.^
1 Martin v. Hunter, 1 Wheat. R. 337, 338 ; Osborn v. Bank of United
States, 9 Wheat. R. 820, 821 ; Cohens v. Virginia, 6 W^heat. R. 392 to
396.
2 The Federalist, No. 82, has spoken of the ri^dit of congress to
vest appellate jurisdiction in the inferior courts of the United States
from state courts, (for it had before expressly affirmed that of the Su-
preme Court in such cases) in the following terms. " But could an ap-
peal be made to lie from the state courts to the subordinate federal ju-
dicatories ? This is another of the questions, which have been raised,
and of greater difficulty, than the former. The following considerations
countewance the affirmative. The plan of the convention, in the first
place, authorizes the national legislature ' to constitute tribunals, inferior
to the Supreme Court. It declares, in the next place, that ' the judicial
power of the United States shall be vested in one Supreme Court, and
in such inferior courts, as congress shall ordain and establish ;' audit
then proceeds to enumerate the cases, to which this judicial power shall
extend. It afterwards divides the jurisdiction of the Supreme Court
into orio-inal and appellate, but gives no definition of that of the subor-
dinate courts. The only outlines described for them are, that they shall
VOL. HI. 73
578 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1702. But the reasoning itself is not well founded.
It proceeds upon the ground, that, because the charac-
ter of the party alone, in some instances, entides the
Supreme Court to maintain original jurisdiction, with-
out any reference to the nature of the case, therefore,
the character of the case, which in other instances is
made the very foundation of appellate jurisdiction, can-
not attach. Now, that is the very point of contro-
versy. It is not only not admitted, but it is solemnly
denied. The argument might just as well, and with
quite as much force, be pressed in the opposite direc-
tion. It might be said, that the appellate jurisdiction
is expressly extended by the consdtution to all cases
in law and equity, arising under the constitution, laws,
and treaties of the United States, and, therefore, in no
such cases could the Supreme Court exercise original
jurisdiction, even though a state were a party.
^ 1703. But this subject has been ex])ounded in so
masterly a manner by Mr. Chief Justice Marshall, in
delivering the opinion of the Supreme Court in a very
celebrated case,^ that it will be more satisfactory to
be 'inferior to the Supreme Court,' and that they shall not exceed the
specified limits of the federal judiciary. Whether their authority shall
be original, or appellate, or both, is not declared. All this seems to be
left to the discretion of the legislature. And this being the case, I per-
ceive at present no impediment to the establishment of an appeal from
the state courts to the subordinate national tribunals ; and many advan-
tages, attending the power of doing it, may be imagined. Jt would di-
minish the motives to the multiplication of federal courts, and would
admit of arrangements, calculated to contract the appellate jurisdiction
of the Supremo Court. The state tribunals may then be left with a
more entire charge of federal causes ; and appeals, in most cases, in
which they may be deemed proper, instead of being carried to the Su-
preme Court, may be made to lie from the state courts to district courts
of the Union."
1 Cohens v. Virginia, 6 Wheat. R. 2G4, 392, et seq.
CH. XXXVIIl.] JUDICIARY JURISDICTION. 579
give the whole argument in his own language. " The
constitution" (says he,) "gives the Supreme Court
original jurisdiction in certain enumerated cases, and
gives it appellate jurisdiction in all others. Among
those, in which jurisdiction must be exercised in the
appellate form, are cases arising under the constitution
and laws of the United States. These provisions of
the constitution are equally obligatory, and are to be
equally respected. If a state be a party, the jurisdic-
tion of this court is original ; if the case arise under the
constitution, or a law, the jurisdiction is appellate. But
a case, to which a state is a party, may arise under the
constitution, or a law of the United States. What
rule is^applicable to such a case 1 What, then, be-
comes the duty of the court 1 Certainly, we think, so
to construe the constitution, as to give effect to both
provisions, as far as it is possible to reconcile them, and
not to permit their seeming repugnancy to destroy each
other. We must endeavour so to construe them, as
to preserve the true intent and meaning of the instru-
ment.
§ 1704. "In one description of cases, the jurisdiction
of the court is founded entirely on the character of the
parties ; and the nature of the controversy is not con-
templated by the constitution. The character of the
parties is every thing, the nature of the case nothing.
In the other description of cases, the jurisdiction is
founded entirely on the character of the case, and the
parties are not contemplated by the constitution. In
these, the natm-e of the case is every thing, the cha-
racter of the parties nothing. When, then, the con-
stitution declares the jurisdiction in cases, where a state
shall be a party, to be original, and in all cases arising
under the constitution, or a law, to be appellate, the
580 CONSTITUTION OF THE U. STATES. [bOOK III.
conclusion seems irresistible, that its framers designed
to include in the first class those cases, in which juris-
diction is given, because a state is a party ; and to in-
clude in the second those, in which jurisdiction is given,
because the case arises under the constitution, or a law.
This reasonable construction is rendered necessary by
other considerations. That the constitution, or a law
of the United States, is involved in a case, and makes
a part of it, may appear in the progress of a cause, in
which the courts of the Union, but for that circumstance,
would have no jurisdiction, and which of consequence
could not originate in the Supreme Court. In such a
case, the jurisdiction can be exercised only in its ap-
pellate form. To deny its exercise in this form is to
deny its existence, and would be to construe a clause,
dividing the power of the Supreme Court, in such
manner, as in a considerable degree to defeat the power
itself. All must perceive, that this construction can be
justified, only where it is absolutely necessary. We
do not think the article under consideration presents
that necessity.
§ 1705. "It is observable, that in this distributive
clause no negative words are introduced. This obser-
vation is not made for the purpose of contending, that
the legislature may 'apportion the judicial power be-
tween the supreme and inferior courts, according to
its will.' That would be, as was said by this court in
the case of Mar bury v. Madison, tO/ render the distri-
butive clause *mere surplusage,' to make it 'form
without substance.' This cannot, therefore, be the
true construction of the article. But although the
absence of negadve words will not authorize the le-
gislature to disregard the distribution of the power
previously granted, their absence will justify a sound
CH. XXXVIII.] JUDICIARY JURISDICTIOX. 581
construction of the whole article, so as to give every part
its intended effect. It is admitted, that 'atrirmative
words are often, in their operation, negative of other
objects, than those affirmed;' and that where 'a nega-
tive or exclusive sense, must be given to them, or they
have no operation at all,' they must receive that nega-
tive, or exclusive sense. But where they have full ope-
ration without it ; where it w ould destroy some of the
most important objects, for which the power was crea-
ted ; then, we think, affirmative words ought not to be
construed negatively.
^ 1706. "The constitution declares, that in cases,
where a state is a party, the Supreme Court shall have
original jurisdiction ; but does not say, that its appellate
jurisdiction shall not be exercised in cases, w here, from
their nature, appellate jurisdiction is given, whether a
state be, or be not a party.^ It may be conceded, that
where the case is of such a nature, as to admit of its
originating in the Supreme Court, it ought to originate
there ; but where, from its nature, it cannot originate
in that court, these words ought not to be so construed,
as to require it. There are many cases, in which it
would be found extremely difficult, and subversive of
the spirit of the constitution, to maintain the construc-
tion, that appellate jurisdiction cannot be exercised,
where one of the parties might sue, or be sued in this
court. The constitution defines the jurisdiction of
the Supreme Court, but does not define that of the
inferior courts. Can it be affirmed, that a state m.ight
not sue the citizen of another state in a Circuit Court?
Should the Circuit Court decide for, or against its juris-
diction, should it dismiss the suit, or give judgment
i See 9 Wheat. R. 820, 821.
582 CONSTITUTION OF THE U. STATES. [bOOK III.
against the state, might not its decision be revised in
the Supreme Court? The argument is, that it could
not ; and the very clause, which is urged to prove, that
the Circuit Court could give no judgment in the case,
is also urged to prove, that its judgment is irreversible.
A supervising court, whose pecuhar province it is to
correct the errors of an inferior court, has no power to
correct a judgment given without jurisdiction, because,
in the same case, that supervising court has original
jurisdiction. Had negative words been employed, it
would be difficult to give them this construction, if they
would admit of any other. But, without negative
words, this irrational construction can never be main-
tained.
^ 1707. "So, too, in the same clause, the jurisdic-
tion of the court is declared to be original, ' in cases
affecting ambassadors, other public ministers, and con-
suls.' There is, perhaps, no part of the article under
consideration so much required by national policy, as
this ; unless it be that part, which extends the judicial
power ' to all cases arising under the constitution, laws,
and treaties of the United States.' It has been gene-
rally held, that the state courts have a concurrent juris-
diction with the federal courts in cases, to w^hich the
judicial power is extended, unless the jurisdiction of
the federal courts be rendered exclusive by the words
of the third article. If the words, 'to all cases,' give
exclusive jurisdicdon in cases affecting foreign minis-
ters, they may also give exclusive jurisdiction, if such
be the will of congress, in cases arising under the con-
stitution, laws, and treaties of the United States. Now,
suppose an individual were to sue a foreign minister in
a state court, and that court were to maintain its juris-
diction, and render judgment against the minister, could
CH. XXXVIII.] JUDICIARY JURISDICTION. 583
it be contended, that this court would be incapable of
revising such judgment, because the constitution had
given it original jurisdiction in the case? If this could
be maintained, then a clause inserted for the purpose
of excluding the jurisdiction of all other courts, than
this, in a particular case, \\ ould have the effect of ex-
cluding the jurisdiction of this court in that very case,
if the suit were to be brought in another court, and that
court were to assert jurisdiction. This tribunal, ac-
cording to the argument, which has been urged, could
neither revise the judgment of such other court, nor
suspend its proceedings; for a writ of prohibition, or
any other similar writ, is in the nature of appellate
process.
§ 1708. "Foreign consuls frequently assert, in our
prize courts, the claims of their fellow subjects. These
suits are maintained by them, as consuls. The appel-
late power of this court has been frequently exercised
in such cases, and has never been questioned. It would
be extremely mischievous to withhold its exercise.
Yet the consul is a party on the record. The truth is,
that, where the words confer only appellate jurisdiction,
original jurisdiction is most clearly not given ; but
where the words admit of appellate jurisdiction, the
power to take cognizance of the suit originally does
not necessarily negadve the power to decide upon it
on an appeal, if it may originate in a different court.
It is, we think, apparent, that to give this distributive
clause the interpretation contended for, to give to its
affirmative words a negative operation, in every possi-
ble case, would, in some instances, defeat the obvious
intention of the article. Such an interpretation would
not consist with those rules, which, from time immemo-
rial, have guided courts in their construction of instru-
584 CONSTITUTIOX OF THE U. STATES. [boOK III.
ments brought under their consideration. It must,
therefore, be discarded. Every part of the article
must be taken into view, and that construction adopted,
which will consist with its words, and promote its gene-
ral intention. The court m.ay imply a negative from
affirmative words, where the implication promotes, not
where it defeats, the intention.
§ 1709. " If we apply this principle, the correctness
of which we believe will not be controverted, to the
distributive clause under consideration, the result, we
think, would be this ; the original jurisdiction of the
Supreme Court in cases, where a state is a party, re-
fers to those cases, in w^hich, according to the grant of
power made in the preceding clause, jurisdiction might
be exercised in consequence of the character of the
party, and an original suit might be instituted in any of
the federal courts ; not to those cases, in which an ori-
ginal suit might not be instituted in a federal court.
Of the last description is every case between a state and
its citizens, and, perhaps, every case, in which a state
is enforcing its penal laws. In such cases, therefore,
the Supreme Court cannot take original jurisdiction.
In every other case, that is, in every case, to which the
judicial power extends, and in which original jurisdic-
tion is not expressly given, that judicial power shall be
exercised in the appellate, and only in the appellate
form. The original jurisdiction of this court cannot be
enlarged, but its appellate jurisdiction maybe exercised
in every case, cognizable under the third article of the
constitution in the federal courts, in which original ju-
risdiction cannot be exercised ; and the extent of this
judicial power is to be measured, not by giving the
affirmative words of the distributive clause a negative
operation in every possible case, but by giving their
CH. XXXVIII.] JUDICIARY JURISDICTION. 585
true meaning to the words, which define its extent.
The counsel for the defendant in error urge, in opposi-
tion to this rule of construction, some dicta of the court,
in the case of Mar bury v. Madison,^
^ 1710. "It is a maxim not to be disregarded, that
general expressions, in every opinion, are to be taken
in connexion with the case, in which those expressions
are used. If they go beyond the case, they may be
respected, but ought not to control the judgment in a
subsequent suit, when the very point is presented for
decision. The reason of this maxim is obvious. The
question actually before the court is investigated with
care, and considered in its full extent. Other principles)
which may serve to illustrate it, are considered in their
relation to the case decided, but their possible bearing
on all other cases is seldom completely investigated.
In the case of Marhury v. Madison, the single question
before the court, so far as that case can be applied to
this, was, whether the legislature could give this court
original jurisdiction in a case, in which the constitution
had clearly not given it, and in which no doubt respect-
ing the construction of the article could possibly be
raised. The court decided, and we think very proper-
ly, that the legislature could not give original jurisdic-
tion in such a case. But, in the reasoning of the court
in support of this decision, some expressions are used,
which go far beyond it. The counsel for Marbury had
insisted on the unlimited discretion of the legislature in
the apportionment of the judicial power ; and it is against
this argument, that the reasoning of the court is direct-
ed. They say, that, if such had been the intention of
the article, ' it would certainly have been useless to
1 1 Cranch, R. 174, 175, 176.
VOL. III. 74
586 CONSTITUTION OF THE U. STATES. [bOOK III.
proceed farther, than to define the judicial power, and
the tribunals, in which it should be vested.' The court
says, that such a construction w^ould render the clause,
dividing the jurisdiction of the court into original and
appellate, totally useless ; that ' affirmative words are
often, in their operation, negative of other objects, than
those which are affirmed ; and, in this case, (in the case
of Marhury v. Madison,) a negative or exclusive sense
must be given to them, or they have no operation at all.'
* It cannot be presumed,' adds the court, ' that any
clause in the constitution is intended to be without
effect ; and, therefore, such a construction is inadmissi-
ble, unless the words require it.'
^ 1711. "The whole reasoning of the court pro-
ceeds upon the idea, that the affirmative words of the
clause, giving one sortof jurisdiction, must imply a neg-
ative of any other sort of jurisdiction, because other-
wise the words Avould be totally inoperative ; and this
reasoning is advanced in a case, to w hich it was strictly
applicable. If in that case original jurisdiction could
have been exercised, the clause under consideration
would have been entirely useless. Having such cases
only in its view, the court lays down a principle, which
is generally correct, in terms much broader, than the
decision, and not only much broader, than the reasoning,
with w^hich that decision is supported, but in some in-
stances contradictory to its principle. The reasoning
sustains the negative operation of the words in that
case, because otherwise the clause would have no
meaning w^hatever, and because such operation, was
necessary to give effect to the intention of the article.
The effort now made is, to apply the conclusion, to
which the court w^as conducted by that reasoning in the
particular case, to one, in which the words have their
CH. XXXVIII.] JUDICIARY — JURISDICTION. 587
full operation, when understood aflirmatively, and in
which the negative, or exclusive sense is to be so used,
as to defeat some of the great objects of the article. To
this construction the court cannot give its assent. The
general expressions in the case of Marbury v. Madison
must be understood with the limitations, which are given
to them in this opinion ; limitations, which in no degree
affect the decision in that case, or the tenor of its rea-
soning. The counsel, who closed the argument, put
several cases for the purpose of illustration, which he
supposed to arise under the constitution, and yet to be,
apparently, without the jurisdiction of the court. Were
a state to lay a duty on exports, to collect the money
and place it in her treasury, could the citizen, who paid
it, he asks, maintain a suit in this court against such
state, to recover back the money 1 Perhaps not. With-
out, however, deciding such supposed case, we may
say, that it is entirely unlike that under consideration.
§ 1712. "The citizen, who had paid his money to
his state, under a law that is void, is in the same situa-
tion with every other person, who has paid money by
mistake. The law raises an assumpsit to return the
money, and it is upon that assumpsit, that the action is
to be maintained. To refuse to comply with this as-
sumpsit may be no more a violation of the constitution,
than to refuse to comply with any other ; and as the
federal courts never had jurisdiction over contracts be-
tween a state and its citizens, they may have none over
this. But let us so vary the supposed case, as to give
it a real resemblance to that under consideration. Sup-
pose a citizen to refuse to pay this export duty, and a
suit to be instituted for the purpose of compelling him
to pay it. He pleads the constitution of the United
States in bar of the action, notwithstanding which the
588 CONSTITUTION OF THE U. STATES. [bOOK III.
court gives judgment against him. This would be a
case arising under the constitution, and would be the
very case now before the court.
^ 1713. "We are also asked, if a state should con-
fiscate property secured by a treaty, whether the indi-
vidual could maintain an action for that property 1 If
the property confiscated be debts, our own experience
informs us, that the remedy of the creditor against his
debtor remains. If it be land, which is secured by a
treaty, and afterwards confiscated by a state, the argu-
ment does not assume, that this title, thus secured, could
be extinguished by an act of confiscation. The injured
party, therefore, has his remedy against the occupant
of the land for that, which the treaty secures to him ;
not against the state for money, which is not secured to
him.
§ 1714. " The case of a state, which pays off' its own
debts with paper money, no more resembles this, than
do those, to which we have already adverted. The
courts have no jurisdiction over the contract. They
cannot enforce it, nor judge of its violation. Let it be,
that the act discharging the debt is a mere nullity, and
that it is still due. Yet the federal courts have no cog-
nizance of the case. But suppose a state to institute
proceedings against an individual, which depended on
the validity of an act emitting bills of credit : suppose a
state to prosecute one of its citizens for refusing paper
money, who should plead the constitution in bar of
such prosecution. If his plea should be overruled, and
judgment rendered against him, his case would resem-
ble this; and, unless the jurisdiction of this court might
be exercised over it, the constitution would be violated,
and the injured party be unable to bring his case before
that tribunal, to which the people of the United States
CH. XXXVIII.] JUDICIARY JURISDICTION. 589
have assigned all such cases. It is most true, that this
court will not take jurisdiction, if it should not: but it
is equally true, that it must take jurisdiction, if it should.
The judiciary cannot, as the legislature may, avoid a
measure, because it approaches the confines of the con-
stitution. We cannot pass it by, because it is doubtful.
With whatever doubts, with whatever difficuUies, a case
may be attended, we must decide it, if it be brought
before us. We have no more right to decline the ex-
ercise of jurisdiction, which is given, than to usurp that,
which is not given. The one or the other would be
treason to the constitution. Questions may occur
which we w^ould gladly avoid ; but we cannot avoid
them. All we can do is, to exercise our best judg-
ment, and consciendously to perform our duty. In
doing this, on the present occasion, we find this tribu-
nal invested with appellate jurisdiction in all cases,
arising under the constitution and laws of the United
States. We find no exception to this grant, and we
cannot insert one.
§ 1715. "To escape the operation of these compre-
hensive words, the counsel for the defendant has men-
tioned instances, in which the constitution might be
violated without giving jurisdiction to this court. These
words, therefore, however universal in their expression,
must, he contends, be limited, and controlled in their
construction by circumstances. One of these instances
is, the grant by a state of a patent of nobility. The
court, he says, cannot annul this grant. This may be
very true ; but by no means justifies the inference
drawn from it. The article does not extend the judi-
cial power to every violation of the constitution, which
may possibly take place ; but to * a case in law or
equity,' in which a right, under such law, is asserted
690 CONSTITUTION OF THE U. STATES. [bOOK III,
in a court of justice. If the question cannot be brought
into a court, then there is no case in law or equity, and
no jui'isdiction is given by the words of the article.
But if, in any controvery depending in a court, the cause
should depend on the vaUdity of such a law, that would
be a case arising under the constitution, to which the
judicial power of the United States would extend.
The same observation appUes to the other instances,
with which the counsel, who opened the cause, has
illustrated this argument. Although they show, that
there may be violations of the consntution, of which
the courts can take no cognizance, they do not show,
that an interpretation more restrictive, than the words
themselves import, ought to be given to this article.
They do not show, that there can be ' a case in law or
equity,' arising under the constitution, to which the
judicial power does not extend. We think, then, that,
as the constituiion originally stood, the appellate juris-
diction of this court, in all cases arising under the con-
stitution, laws, or treaties of the United States, was
not arrested by the circumstance, that a state was a
party."'
1 Much reliance has occasionally been laid upon particular expres-
sions of the Supreme Court, used incidentally in argument, to support the
reasoning, which is here so ably answered. The reasoning in Marhury
V. Madison, (1 Cranch, R. 174, 175, 17f),) has been cited, as especially
in point. But the Supreme Court, in Cohens v. Virginia, (6 Wheat. R.
399 to 402) explained it in a satisfactory manner. So, in otlier cases, it
is said by the Supreme Court, that "appellate jurisdiction is given to
the Supreme Court in all cases, where it has not original jurisdiction ; "
and that "it may be exercised (by the Supreme Court) in all other cases,
than those, of which it has original cognizance."* And again, "in
those cases, in which the original jurisdiction is given to the Supreme
Court, the judicial power of the United States cannot be exercised in
» Martin v. Tfunlcr, 1 \Vhoaton's R. 337, 333.
CH. XXXVIII.J JUDICIARY JURISDICTION. 591
^ 1716. The next inciuiry is, whether the elev-
enth amendment to the constitution has efTected any
change of the jurisdiction, thus confided to the judi-
cial power of the United States. And here again
the most satisfactory answer, which can be given, will
be found in the language of the same opinion.^ After
quoting the words of the amendment, which are, " the
"judicial power of the United States shall not be
" construed to extend to any suit in law or equity,
*' commenced or prosecuted against one of the states
" by citizens of another state, or by citizens or sub-
" jects of any foreign state," the opinion proceeds :
" It is a part of our history, that, at the adoption of
the constitution, all the states were greatly indebted ;
and the apprehension, that these debts might be
prosecuted in the federal courts, formed a very seri-
ous objection to that instrument. Suits were insti-
tuted ; and the court maintained its jurisdiction.
The alarm was general ; and, to quiet the appre-
its appellate form. ' * Now, these expression, if taken in connexion with
the context, and the general scope of the arg-ument, in which they are
to be found, are perfectly accurate. It is only by detaching- them from
this connexion, that they are supposed to speak a lang-uage, inconsistent
with that in Cohens v. Virginia, (6 Wheat. R. 392 to 399.) The court,
in each of the cases, where the language above cited is used, were re-
ferring to those classes of cases, in which original jurisdiction is given
solely by the character of the party, i. e. a state, a foreign amba:?sador
or other public minister, or a consul. In such cases, if there would be no
jurisdiction at all, founded upon any other part of the constitutional dele-
gation of judicial power, except that applicable to parties, the court held,
that the appellate jurisdiction would not attach. Why? Plainly, be-
cause original jurisdiction only was given in such cases. But where
the constitution extended tiie appellate jurisdiction to a class of cases,
embracing the particular suit, without any reference to the point, who
were parties, there tlie same reasoning would not apply.
1 Cohens V. Virginia, 6 Wheat. R. 406 to 412.
Osbom V. Batik of United States, 9 Whcaton's R. 820.
592 CONSTITUTION OF THE U. STATES. [bOOK III.
hensions, that were so extensvely entertained, this
a;iiendment was proposed in Congress, and adopted
by the state legislatures. That its motive was not to
maintain the sovereignty of a state from the degrada-
tion, su{)posed to attend a compulsory appearance
before the tribunal of the nation, may be inferred
from the terms of the amendment. It does not com-
prehend controversies between tw^o or more states,
or between a state and a foreign state. The juris-
diction of the court still extends to these cases ; and
in these a state may still be sued. We must ascribe
the amendment, then, to some other cause, than the
dignity of a state. There is no difficulty in finding
this cause. Those, who were inhibited from com-
mencing a suit against a state, or from prosecuting
one, which might be commenced before the adoption
of the amendment, were persons, who might probably
be its creditors. There was not much reason to fear,
that foreign or sister states would be creditors to any
considerable amount; and there was reason to retain
the jurisdiction of the court in those cases, because
it might be essential to the preservation of peace.
The amendment, therefore, extended to suits com-
menced, or prosecuted by individuals, but not to those
brought by states.
^ 1717. "The first impression made on the mind
by this amendment is, that it was intended for those
cases, and for those only, in which some demand
against a state is made by an individual in the courts
of the Union. If we consider the causes, to which it
is to be traced, we are conducted to the same con-
clusion. A general interest might well be felt in
leaving to a state the full power of consulting its
convenience in the adjustment of its debts, or of
CH. XXXVIIl.] JUDICIARY JURISDICTION. 593
other claims upon it ; but no interest could be felt in
so changing the I'elations between the whole and its
parts, as to strip the government of the means of
protecting, by the instrumentality of its courts, the
constitution and laws from active violation.
^ 1718. " The words of the amendment appear to
the court to justify and require this construction.
The judicial power is not ' to extend to any suit in
law or equity, commenced, or prosecuted against one
of the United States by citizens of another state, &c.'
§ 1719. "What is a suit7 We understand it to be
the prosecution, or pursuit, of some claim, demand,
or request. In law language, it is the prosecution of
some demand in a court of justice. The remedy
for every species of wrong is, says Judge Blackstone,
'the being put in possession of that right whereof
the party injured is deprived.' * The instruments,
whereby this remedy is obtained, are a diversity of
suits and actions, which are defined by the Mirror
to be "the lawful demand of one's right;" or, as
Bracton and Fleta express it, in the words of Justin-
ian, jus prosequendi in Judicio, quod alicui debetur.
Blackstone then proceeds to describe every species
of remedy by suit ; and they are all cases, where the
party suing claims to obtain something, to which he
has a right.
^ 1720. " To commence a suit is to demand some-
thing by the institution of process in a court of justice ;
and to prosecute the suit, is, according to the com-
mon acceptation of language, to continue that de-
mand. By a suit commenced by an individual against
a state, we should understand process sued out by
that individual against the state, for the purpose of
establishing some claim against it by the judgment of
VOL. III. 75
594 COJVSTITUTION OF THE U. STATES. [bOOK III.
a court ; and the prosecution of that suit is its con-
tinuance. AVhatever may be the stages of its pro-
gress, the actor . is still the same. Suits had been
commenced in the Supreme Court against some of
the states before this amendment was introduced into
Congress, and others might be commenced, before it
should be adopted by the state legislatures, and
might be depending at the time of its adoption. The
object of the amendment was, not only to prevent the
commencement of future suits, but to arrest the pros-
ecution of those, which might be commenced, when
this article should form a part of the constitution. It
therefore embraces both objects ; and its meaning is,
that the judicial power shall not be construed to
extend to any suit, which may be commenced, or
which, if already commenced, may be prosecuted
against a state by the citizen of another state. If a
suit, brought in one court, and carried by legal pro-
cess to a supervising court, be a continuation of the
same suit, then this suit is not commenced nor pros-
ecuted against a state. It is clearly in its commence-
ment the suit of a state against an individual, which
suit is transferred to this court, not for the purpose
of asserting any claim against the state, but for the
purpose of asserting a consdtutional defence against
a claim made by a state.
^ 1721. "A writ of error is defined to be a commis-
sion, by which the judges of one court are authorized
to examine a record, upon which a judgment was
given in another court, and, on such examination, to
affirm, or reverse the same according to law. If,
says my Lord Coke, by the writ of error the plaintiff
may recover, or be restored to any thing, it may be
released by the name of an action. In Bacon's
CH. XXXVin.] JUDICIARY JURISDICTION. 595
Abridgment, tit. Error, L. it is laid down, that
' where by a writ of error the plaintiff shall recover,
or be restored to any personal thing, as debt, dam-
age, or the like, a release of all actions personal is a
good plea. And wdien land is to be recovered, or
restored in a writ of error, a release of actions real is
a good bar. But where by a writ of error the plaintiff
shall not be restored to any personal or real thing,
a release of all actions real or personal is no bar.'
And for this we have the authority of Lord Coke,
both in his Commentary on Littleton and in his
Reports. A writ of error, then, is in the nature of a
suit or action, when it is to restore the party, who
obtains it to the possession of any thing, which is
withheld from him, not when its operation is entirely
defensive. This rule will apply to writs of error from
the Courts of the United States, as well as to those
writs in England.
§ 1722. " Under the judiciary act, the effect of a
wnnt of error is simply to bring the record into Court,
and submit the Judgment of the inferior tribunal to
re-examination. It does not in any manner act upon
the parties; it acts only on the record. It removes
the record into the supervising tribunal. Where,
then, a state obtains a judgment against an individual,
and the court, rendering such judgment, overrules a
defence, set up under the constitution, or laws of the
United States, the transfer of this record into the Su-
preme Court, for the sole purpose of inquiring, wdiether
the judgment violates the constitution or laws of the
United States, can, w^ith no propriety, we think, be de-
nominated a suit commenced, or prosecuted against
the state, whose judgment is so far re-examined. No-
thing is demanded from the state. No claim against it,
596 CONSTITUTION OF THE U. STATES. [bOOK III.
of any description, is asserted or prosecuted. The
party is not to be restored to the possession of any
thing. Essentially, it is an appeal on a single point ;
and the defendant, who appeals from a judgment ren-
dered against him, is never said to commence, or pros-
ecute a suit against the plaintiff, who has obtained the
judgment. The wi'it of error is given, rather than an
appeal, because it is the more usual mode of removing
suits at common law^ ; and because, perhaps, it is more
technically proper, where a single point of law, and not
the whole case, is to be re-examined. But an appeal
might be given, and might be so regulated, as to effect
every purpose of a writ of error. The mode of re-
moval is form, and not substance. Whether it be by
writ of error, or appeal, no claim is asserted, no demand
is made by the original defendant. He only asserts the
constitutional right, to have his defence examined by
that tribunal, w^hose province it is to construe the con-
stitution and laws of the Union.
§ 1 723. " The only part of the proceeding, w'hich is
in any manner personal, is the citation. And what is
the citation ? It is simply notice to the opposite party,
that the record is transferred into another court, where
he may appear, or decline to appear, as his judgment,
or inclination may determine. As the party, who has
obtained a judgment is out of court, and may, there-
fore, not know, that his cause is removed, common jus-
tice requires, that notice of the fact should be given him.
But this notice is not a suit, nor has it the effect of
process. If the party does not choose to appear, he
cannot be brought into court, nor is his failure to appear
considered as a default. Judgment cannot be given
against him for his non-appearance ; but the judgment
is to be re-examined, and reversed, or affirmed, in like
CH. XXXVIII.] JUDICIARY JURISDICTION. 597
manner, as it" the party bad appeared, and argued his
cause.
§ 1724. '* The point of view, in which this writ of
error, with its citation, has been considered uniformly
in the courts of the Union, has been well illustrated
by a reference to the course of this court in suits in-
stituted by the United States. The universally receiv-
ed opinion is, that no suit can be commenced, or pros-
ecuted against the United States ; that the judiciary
act does not authorize such suits. Yet writs of error,
accompanied with citations, have uniformly issued for
the removal of judgments in favour of the United
States into a superior court, where they have, hke
those in favour of an individual, been re-examined, and
affirmed, or reversed. It has never been suggested,
that such writ of error was a suit against the United
States, and, therefore, not within the jurisdiction of the
appellate court. It is, then, the opinion of the court,
that the defendant, who removes a judgment, rendered
against him by a state court, into this court, for the pur-
pose of re-examining the question, whether that judg-
ment be in violation of the constitution and laws ot the
United States, does not commence, or prosecute a suit
against the state, whatever may be its opinion, where
the effect of the writ may be to restore the party to
the possession of a thing, Vvhich he demands."^
^ 1725. Another inquiry, touching the appellate ju-
risdiction of the Supreme Court, of a still more general
character, is, whether it extends only to the inferior
courts of the Union, constituted by congress, or reaches
to cases decided in the state courts. This question
1 See also Govenio)- of Georgia v. JIadrazo, 1 Peters's Sup. E. 128
to 131, per Johnson J.
598 COXSTJTUTIOX OF THE U. STATES. [bOOK III.
has been made on several occasions ; and has been
most deliberately weighed, and solemnly decided in
the Supreme Court. The reasoning of the court in
Martin v. Hunter,^ (which was the first time, in which
the question was directly presented for judgment,) will
be here given, as it has been affirmed on more recent
discussions/^
§ 1726. "This leads us," says the court "to the
consideration of the great question, as to the nature
and extent of the appellate jurisdiction of the United
States. We have already seen, that appellate jurisdic-
tion is given by the constitution to the Supreme Court
in all cases, where it has not original jurisdiction ; sub-
ject, however, to such exceptions and regulations, as
congress may prescribe. It is, therefore, capable of
embracing every case enumerated in the constitution,
which is not exclusively to be decided by way of origi-
nal jurisdiction. But the exercise of appellate juris-
diction is far from being Hmited by the terms of the
constitution to the Supreme Court. There can be no
doubt, that congress may create a succession of inferior
tribunals, in each of which it may vest appellate, as
well as original jurisdiction. The judicial power is
delegated by the constitution in the most general terms,
and may, therefore, be exercised by congress, under
every variety of form of appellate, or original jurisdic-
tion. And as there is nothing in the constitution, w^hich
restrains, or limits this power, it must, therefore, in all
these cases, subsist in the utmost latitude, of which, in
its own nature, it is susceptible.
^ 1727. "As, then, by the terms of the constitution,
1 1 Wlicat. R. ?m.
2 Cohens V. Virginia, 6 Wheat. R. 413 to 4*23.
CH. XXXVJII.] JUDICIARY JURISDICTION. 599
the appellate jurisdiction is not limited, as'to the Su-
preme Court, and as to this court it may be exercised
m all other cases, than those, of whieh it has original
cognizance, what is there to restrain its exercise over
state tribunals in the enumerated cases? The appel-
late power is not limited by the terms of the third arti-
cle to any particular courts. The words are, ' the
judicial power (which includes appellate power,) shall
extend to all cases, ^ &lc., and Mn all other cases before
mentioned, the Supreme Court shall have appellate
jurisdiction.' It is the case, then, and not the court,
that gives the jurisdiction. If the judicial power ex-
tends to the case, it will be in vain to search in the
letter of the constitution for any qualification, as to the
tribunal, where it depends. It is incumbent, then,
upon those, who assert such a qualification, to show
its existence by necessary implication. If the text
be clear and distinct, no restriction upon its plain and
obvious import ought to be admitted, unless the in-
ference be irresistible.
§ 1728. " If the constitution meant to limit the ap-
pellate jurisdiction to cases pending in the courts of
the United States, it w^ould necessarily follow, that
the jurisdiction of these courts would, in all the cases
enumerated in the constitution, be exclusive of state
tribunals. How, otherwise, could the jurisdiction
extend to all cases, arising under the constitution,
laws, and treaties of the United States, or, to all cases
of admiralty and maritime jurisdiction ? If some of
these cases might be entertained by state tribunals,
and no appellate jurisdiction, as to them, should exist,
then the appellate power would not extend to all, but
to some, cases. If state tribunals might exercise
concurrent jurisdiction over all, or some of the other
600 CONSTITUTION OF THE U. STATES. [bOOK III.
classes of cases in the constitution, ^vithout control,
then the appellate jurisdiction of the United States
might, as to such cases, have no real existence, con-
trary to the manifest intent of the constitution. Un-
der such circumstances, to give effect to the judicial
power, it must be construed to be exclusive ; and
this, not only when the casus fccderis should arise di-
rectly; but when it should arise incidentally in cases
pending in state courts. This construction would
abridge the jurisdiction of such courts far more, than
has been ever contemplated in any act of congress.
§ 1729. " On the other hand, if, as has been con-
tended, a discretion be vested in congress to estab-
lish, or not to establish, inferior courts at their own
pleasure, and congress should not establish such
courts, the appellate jurisdiction of the Supreme
Court would have nothing to act upon, unless it could
act upon cases pending in the state courts. Under
such circumstances it must be held, that the appellate
pow'cr w ould extend to state courts ; for the consti-
tution is peremptory, that it shall extend to certain
enumerated cases, which cases could exist in no
other courts. Any other construction, upon this
supposition, would involve this strange contradiction,
that a discretionary power, vested in congress, and
which they might rightfully omit to exercise, w-ould
defeat the absolute injunctions of the constitution in
relation to the whole appellate power.
^ 1730. "But it is plain, that the framers of the
constitution did contemplate, that cases within the
judicial cognizance of the United States, not only
might, but would arise in the state courts in the ex-
ercise of their ordinary jurisdiction. With this view,
the sixth article declares, that * this constitution, and
CH. XXXVIII.] JUDICIARY JURISDICTION. 601
the laws of the United States, which shall be made
in pursuance thereof, and all treaties made, or which
shall be nia le, under the authority of the United
States, shall be the supreme law of the land, and the
judges, in every state, shall be bound thereby, anything,
m the constitution or laws of any state, to the con-
trary notwithstanding.' It is obvious, that this obli-
gation is imperative upon the state judges in their
official, and not merely in their private capacities.
From the very nature of their judicial duties, they
would be called upon to pronounce the law, applica-
ble to the case in judgment. They were not to de-
cide, merely according to the laws, or constitution of
the state, but according to the constitution, laws, and
treaties of the United States, — ' the supreme law of
the land.'
§ 1731. "A moment's consideradon will show us
the necessity and propriety of this provision in cases,
where the jurisdiction of the state courts is unques-
tionable. Suppose a contract, for the payment of
money, is made between citizens of the same state,
and performance thereof is sought in the courts of
that state ; no person can doubt, that the jurisdiction
completely and exclusively attaches, in the first in-
stance, to such courts. Suppose at the trial, the de-
fendant sets up, in his defence, a tender under a state
law, making paper money a good tender, or a state
law, impairing the obligation of such contract, which
law, if binding, would defeat the suit. The constitu-
tion of the United States has declared, that no state
shall make any thing but gold or silver coin a ten-
der in payment of debts, or pass a law impairing the
obhgatioa of contracts. If congress shall not have
passed a law, providing for the removal of such a suit
VOL. III. 76
602 CONSTITUTION OF THE U. STATES. [BOOK III.
to the courts of the United States, must not the state
court proceed to hear, and determine it? Can a
mere plea in defence be, of itself, a bar to further
proceedings, so as to prohibit an inquiry into its truth,
or legal propriety, when no other tribunal exists, to
whom judicial cognizance of such cases is confided?
Suppose an indictment for a crime in a state court,
and the defendant should allege in his defence, that
the crime was created by an ex post facto act of the
state, must not the state court, in the exercise of a
jurisdiction, which has already rightfully attached,
have a right to pronounce on the validity, and suffi-
ciency of the defence? It would be extremely diffi-
cult, upon any legal principles, to give a negative an-
swer to these inquiries. Innumerable instances of
the same sort might be stated, in illustration of the
position ; and unless the state courts could sustain
jurisdiction in such cases, this clause of the sixth ar-
ticle would be w ithout meaning or effect ; and pubHc
mischiefs, of a most enormous magnitude, would in-
evitably ensue.
§ 1732. '' It must, therefore, be conceded, that the
constitution, not only contemplated, but meant to
provide for cases within the scope of the judicial
power of the United States, which might yet depend
before state tribunals. It was foreseen, that, in the
exercise of their ordinary jurisdiction, state courts
would, incidentally, take cognizance of cases arising
under the constitution, the laws, and treaties of the
United States. Yet to all these cases the judicial
power, by the very terms of the constitution, is to
extend. It cannot extend by original jurisdiction, if
that has already rightfully and exclusively attached
in the state courts, which (as has been already show^n)
CH. XXXVIII.] JUDICIARY-TENURE OF OFFICE. 603
may occur; it must, therefore, extend by appellate
jurisdiction, or not at all. It would seem to follow,
that the appellate power of the United States must,
in such cases, extend to state tribunals ; and, if in
such cases, there is no reason, why it should not
equally attach upon all others within the purview of
the constitution. It has been argued, that such an
appellate jurisdiction over state courts is inconsistent
with the genius of our governments, and the s])ii'it of
the constitution. That the latter was never designed
to act upon state sovereignties, but only upon the
people ; and that, if the power exists, it will materially
impair the sovereignty of the states, and the inde-
pendence of their courts. We cannot yield to the
force of this reasoning; it assumes principles, which
we cannot admit, and draws conclusions, to which we
do not yield our assent.
§ 1733. " It is a mistake, that the constitution w^as
not designed to operate upon states in their corpo-
rate capacities. It is crowded with provisions, which
restrain, or annul the sovereignty of the states, in
some of the highest branches of their prerogatives.
The tenth section of the first article contains a long
list of disabilities and prohibitions imposed upon the
states. Surely, w^hen such essential portions of state
sovereignty are taken away, or prohibited to be ex-
ercised, it cannot be correctly asserted, that the con-
stitution does not act upon the states. The language
of the constitution is also imperative upon the states,
as to the performance of many duties. It is impera-
tive upon the state legislatures to make laws pre-
scribing the time, places, and manner of holding elec-
tions for senators and representatives, and for electors
of president and vice-president. And in these, as well
604 CONSTITUTION OF THE CJ. STATES. [bOOK III.
as some other cases, congress have a right to revise,
amend, or supercede the laws, which may be passed
by state legislatures. When, therefore, tl.e states
are stripped of somfe of the highest attributes of sove-
reignty, and the same are given to the United States ;
when the legislatures of the states are, in some re-
spects, under the control of congress, and, in every case,
are, under the constitution, bound by the paramount
authority of the United States ; it is certainly diffi-
cult to support the argument, that the appellate power
over the decisions of state courts is contrary to the
genius of our institutions. The courts of the United
States can, without question, revise the proceedings
of the executive and legislative authorities of the
states ; and, if they are found to be contrary to the
constitution, may declare them to be of no legal va-
Hdity. Surely, the exercise of the same right over
judicial tribunals is not a higher, or more dangerous
act of sovereign power.
§ 1734. " Nor can such a right be deemed to im-
pair the independence of state judges. It is assum-
ing the very ground in controversy to assert, that they
possess an absolute independence of the United
States. In respect to the pow-ers granted to the
United States, they are not independent ; they are
expressly bound to obedience by the letter of the
constitution ; and, if they should unintentionally
transcend their authority, or misconstrue the consti-
tution, there is no more reason for giving their judg-
ments an absolute and irresistible force, than for giv-
ing it to the acts of the other co-ordinate depart-
ments of state sovereignty. The argument urged
from the possibility of the abuse of the revising power
is equally unsatisfactory. It is always a doubtful
en. XXXVJII.] JUDICIARY J UKISJJICTION. (j05
cours(i to ar^no af^ainsl tin; use, or cxislcncc; (if ji
po\v(;r, IVorii llic ])os.sil)ilily ol" lis abuse. 1 1 is still
more dininill, hy su<;li an ai-;.Miin(:iil, to iii<;i-;iri upon a
general power a rcslriclioii, wliicli is not (o he lound
in the terms, in vvhieh ii is ;i,iven. h'loni llie vciy
nature of things, tlu; al>solul(t ri^lit ol decision, in llu;
last resort, must rest som(;wlier(i. WlKMcver it
may he V(;s(e(l, it is suseeplihie of ahuse. in all
questions of jurisdiction, llie inleiior, or appcdiale
court, must pronounce tlici final jud^i^nient ; and com-
mon sense, as well as lc;^al reasoning, lias conferred
it uj)on tlut latter. i-
§ 173/3. "It has heen further argued against the
existence of tliis a[)|)(dlate [)ow(ir, that it would hjrm
a novelty in our Judicial institutions. This is certain-
ly a mistaia^ In tlui articl(*s oi' cofd"ed(iratioji, an
instrument framed with infinitely more deference to
state rights, and state j(ralousi(.'S, a j)OW(ir was given
to congress, to establish 'courts for revising and de-
termining, finally, appeals in all cas(,'s of captures.'
It is remarkable, that no power was given to entertain
o^^^mri/ jurisdiction in such cases ; and, cons(i(]U(;nUy,
the appellate ])ower, (although not so expressed in
terms,) was altogether to bci exercised in revising
the decisions of state tribunals. This was, undoubt-
edly, so far a surrc.'uder of state sovereignty, i^ut it
never was supjjosed to be a power fraught with pub-
lic danger, or destructive of the independence of state
judges. On the contrary, it was supposed to be a
power indispensable tr) the ])ublic safety, inasmuch as
our national rights might otherwise be compromitt(*d,
and our national peace be endangered. Under 'he
present constitution, the prize jurisdiction is confined
to the courts of the United States ; and a power to
606 CONSTITUTION OF THE U. STATES. [bOOK III.
revise the decisions of state courts, if they should as-
sert jurisdiction over prize causes, cannot be less
important, or less useful, than it was under the con-
federation. In this connexion, we are led again to
the construction of the words of the constitution,
'the judicial power shall extend,' Slc, If, as has
been contended at the bar, the term ' extend' have
a relative signification, and mean to widen an existing
power, it will then follow, that, as the confederation
gave an appellate power over state tribunals, the con-
stitution enlarged, or widened that appellate power
to all the other cases, in which jurisdiction is given to
the courts of the United States. It is not presumed,
that the learned counsel would choose to adopt such
a conclusion.
§ 1736. "It is further argued, that no great public
mischief can result from a construction, which shall
limit the appellate power of the United States to
cases in their own courts : first, because state judges
are bound by an oath, to support the constitution of
the United States, and must be presumed to be men
of learning and integrity; and, secondly, because
congress must have an unquestionable right to re-
move all cases, within the scope of the judicial power,
from the state courts, to the courts of the United
States, at any time before final judgment, though not
after final judgment. As to the first reason, — ad-
mitting that the judges of the state courts are, and
always will be, of as much learning, integrity, and
wisdom, as those of the courts of the United States,
(which we very cheerfully admit,) it does not aid the
argument. It is manifest, that the constitution has
proceeded upon a theory of its own, and given, and
withheld powers according to the judgment of the
CH. XXXVIII.] JUDICIARY JURISDICTION. 607
American people, by whom it was adopted. We can
only construe its powers, and cannot inquire into the
policy, or principles, which induced the grant of them.
The constitution has presumed (whether rightly or
wrongly, we do not inquire) that state attachments,
state prejudices, state jealousies, and state interests,
might sometimes obstruct, or control, or be supposed
to obstruct, or control, the regular administration of
justice. Hence, in controversies between states ;
between citizens of different states ; between citi-
zens, claiming grants under different states ; between
a state and its citizens, or foreigners ; and between
citizens and foreigners ; it enables the parties, under
the authority of congress, to have the controversies
heard, tried, and determined before the national tri-
bunals. No other reason, than that, which has been
stated, can be assigned, why some, at least, of these
cases should not have been left to the cognizance of
the state courts. In respect to the other enumerated
cases, — the cases arising under the constitution, laws,
and treaties of the United States ; cases affecting am-
bassadors and other public ministers ; and cases of
admiralty and maritime jurisdiction, — reasons of a
higher and more extensive nature, touching the safety,
peace, and sovereignty of the nation, might well jus-
tify a grant of exclusive jurisdiction.
^ 1737. "This is not all. A motive of another
kind, perfectly compatible with the most sincere re-
spect for state tribunals, might induce the grant of ap-
pellate power over their decisions. That motive is
the importance, and even necessity, of umformity of
decisions throughout the whole United States upon
all subjects within the purview of the constitution.
Judges of equal learning and integrity, in different
608 CONSTITUTION OF THE U. STATES. [bOOK III.
states, might differently interpret a statute, or a treaty
of the United States, or even the constitution itself.
If there Avereno revising authority to control these jar-
ring and discordant judgments, and harmonise them
into uniformity, the laws, the treaties, and the consti-
tution of the United States, would be different in
different states ; and might, perhaps, never have pre-
cisely the same construction, obligation, or efficacy,
in any two states. The pubUc mischiefs, which w^ould
attend such a state of things, w^ould be truly deplor-
able ; and it cannot be believed, that they could have
escaped the enlightened convention, which formed
the constitution. What, indeed, mght then have
been only prophecy, has now^ become fact ; and the
appellate jurisdiction must continue to be the only
adequate remedy for such evils.
§1738. "There is an additional consideration,
which is ent"t-ed to great weight. The constitution
of the United States was designed for the common
and equal benefit of all the people of the United
States. The judicial power was granted for the same
benign and salutary purposes. It was not to be ex-
ercised exclusively for the benefit of parties, who
might be plaintiffs, and would elect the national forum;
but also for the protection of defendants, who might
be entitled to try their rights, or assert their privi-
leges, before the same forum. Yet, if the construction
contended for be correct, it will follow, that, as the
plaintiff may always elect the stae courts, the de-
fendant may be deprived of all the security, which
the constitution intended in aid of his rights. Such
a state of things can, in no respect, be considered, as
giving equal rights. To obviate this difficulty, we are
referred to the power, which it is admitted, congress
CH. XXXVIII.] JUDICIARY JURISDICTION. GOD
possess to remove suits from state courts, to the na-
tional courts ; and this forms the second ground, upon
which the argument, we are considering, has been at-
tempted to be sustained.
^ 1739. "This power of removal is not to be found
in express terms in any part of the consUtution ; if it
be given, it is only given by implication, as a power
necessary and proper to carry into effect some ex-
press power. The power of removal is certainly not,
in strictness of language, an exercise of original
jurisdiction ; it presupposes an exercise of original
jurisdiction to have attached elsewhere. The
existence of this power of removal is familiar in
courts, acting according to the course of the common
law, in criminal, as well as in civil cases ; and it is ex-
ercised before, as well as after judgment. But this is
always deemed, in both cases, an exercise of appellate,
and not of original jurisdiction. If, then, the right of
removal be included in the appellate jurisdiction, it is
only, because it is one mode of exercising that power ;
and as congress is not hmited by the consUtution to
any particular mode, or time of exercising it, it may
authorize a removal, either before, or after judgment.
The time, the process, and the manner, must be sub-
ject to its absolute legislative control. A writ of
error is, indeed, but a process, which removes the
record of one court to the possession of another court,
and enables the latter to inspect the proceedings, and
give such judgment, as its own opinion of the law and
justice of the case may warrant. There is nothing in
the nature of the process, which forbids it from being
applied by the legislature to interlocutory, as well as
final judgments. And if the right of removal from
state courts exist before judgment, because it is includ-
voL. III. 77
610 CONSTITUTION OF THE U. STATES. [bOOK III.
ed in the appellate power, it must, for the same reason,
exist after judgment. And if the appellate power, by
the constitution, does not include cases pending in state
courts, the right of removal, which is but a mode of
exercising that power, cannot be applied to them.
Precisely the same objections, therefore, exist as to the
right of removal before judgment, as after ; and both
must stand, or fall together. Nor, indeed, would the
force of the arguments on either side materially vary,
if the right of removal were an exercise of original
jurisdiction. It Vvould equally trench upon the juris-
diction, and independence of state tribunals.
^ 1740. "The rem.edy, too, of removal of suits
would be utterly inadequate to the purposes of the
constitution, if it could act only on the parties, and not
upon the state courts. In respect to criminal prosecu-
tions, the difficulty seems admitted to be insurmount-
able ; and in respect to civil suits, there would, in many
cases, be rights without corresponding remedies. If
state courts should deny the constitutionality of the
authority to remove suits from their cognizance, in what
manner could they be compelled to relinquish the ju-
risdiction ? In respect to criminal cases, there would
at once be an end of all control; and the state decisions
would be paramount to the constitution. And though,
in civil suits, the courts of the United States might act
upon the parties ; yet the state courts might act in the
same way ; and this conflict of jurisdictions would not
only jeopard private rights, but bring into imminent
peril the public interests. On the whole, the court are
of opinion, that the appellate power of the United
States does extend to cases pending in the state
courts ; and that the 25th section of the judiciary act,
which authorizes the exercise of this jurisdiction in the
CH. XXXVm.] JUDICIAUY J URISDICTfOX. (ill
specified cases, by a writ of error, is supported by the
letter and spirit of the constitution. We find no clause
in that instrument, which limits this power; and we
dare not interpose a limitation, where the people have
not been disposed to create one.
§ 1741. "Strong as this conclusion stands upon the
general language of the constitution, it may still derive
support from other sources. It is an historical fact,
that this exposition of the constitution, extending its
appellate pov/er to state courts, was, previous to its
adoption, uniformly and publicly avowed by its friends,
and admitted by its enemies, as the basis of their res-
pective reasonings, both in and out of the state con-
ventions. It is an historical fact, that, at the time, when
the judiciary act was submitted to the deliberations of
the first congress, composed, as it was, not only of men
of great learning and ability, but of men, who had act-
ed a principal part in framing, supporting, or opposing
that constitution, the same exposition was explicitl}^
declared, and admitted by the friends, and by the op-
ponents of that system. It is an historical fact, that the
Supreme Court o( the United States have, from time to
time, sustained this appellate jurisdiction in a great va-
riety of cases, brought from the tribunals of many of
the most important states in the Union ; and that no
state tribunal has ever breathed a judicial doubt on the
subject, or declined to obey the mandate of the Su-
preme Court, until the present occasion. This weight
of contemporaneous exposiiion by all parties, this ac-
quiescence of enlightened state courts, and these judi-
cial decisions of the Supreme Court, throtigh so long a
period, do, as we think, place the doctrine upon a
foundation of authority, which cannot be shaken, w ith-
612 CONSTITUTION OF THE U. STATES. [bOOK III.
out delivering over the subject to perpetual, and irre-
mediable doubts."^
1 The same subject is most elaborately considered in Cohens v. Vir-
ginia, (G Wheat. R. 413 to 42*3,) from which the following extract is
taken. After adverting to the nature of the national governnicnt, and
its powers and capacities, Mr. Chief Justice Marshall proceeds as fol-
lows. "In a government so constituted, is it unreasonable, that the ju-
dicial power should be competent to give etncacy to the constitutional
laws of the legislature ? That department can decide on the validity
of the constitution, or law of a state, if it be repugnant to the constitu-
tion, or to a law of the United States. Is it unreasonable, that it should
also be empowered to decide on the judgment of a state tribunal, en-
forcing such unconstitutional law ? Is it fo very unreasonable, as to
furnish a justification for controling the words of the constitution?
"We think it is not. We think that in a government, acknowledgedly
supreme with respect to objects of vital interest to the nation, there is
nothing inconsistent with sound reason, nothing incompatible with the
nature of government, in making all its departments supreme, so far as
respects those objects, and so far as is necessary to their attainment.
The exercise of the appellate power, over those judgments of the state
tribunals, which may contravene the constitution, or laws of the United
States, is, we believe, essential to the attainment of those objects.
"The propriety of entrusting the construction of the constitution,
and laws made in pursuance thereof, to the judiciary of the Union, has
not, we believe, as yet been drawn into question. It seems to be a co-
rollary from this political axiom, that the federal courts should either
possess exclusive jurisdiction in such cases, or a power to revise the
judgment rcmlered in them by the state tribunals. If the federal and
state courts have concurrent jurisdiction in all cases arising under the
constitution, laws, and treaties of the United States ; and, if ti case of
this description, brought in a state court, cannot be removed before judg-
ment, nor revised after judgment, then the construction of the constitu-
tion, laws, and treaties of the United States, is not confided particularly
to their judicial department ; but is confided equally to that department,
and to the state courts, however they may be constituted. ' Thirteen
independent courts,' says a very celebrated statesman, (and we have
now, more than twenty such courts,) 'of final jurisdiction over the same
causes, arising upon the same laws, is a hydta in government, from
which, nothing but contradiction and confusion can proceed.'
"'Dismissing the unpleasant suggestion, that any motives, which may
not be fairly avowed, or which ought not to exist, can ever influence a
Btate, or its courts, the necessity of uniformity, as well as correctness, in
expounding the constitution and laws of the United States, would itself
CH. XXXVIII.] JUDICIARY JURISDICTION. 613
§ 1742. Another inquiry is, whetherthe judicial pow-
er of the United States in any cases, and if in any, in
suggest the propriety of vesting- in some single tribunal the power of
decitling, in the last resort, all cases, in which they are involved.
" We are not restrained, then, by the political relation between the
general and state governments, from construing the words of the con-
stitution, defining the judicial power, in their true sense. We are not
bound to construe them more restrictively than they naturally import.
" They give to the Supreme C'ourt appellate jurisdiction in all cases,
arising under the constitution, laws, and treaties of the United States.
The words are broad enough to comprehend all cases of this descrip-
tion, in whatever court they may be decided. In expounding them, we
may be permitted to take into view thost considerations, to which courts
have ahvays allowed great weight in the exposition of laws.
*' The framers of the constitution would naturally examine the state
of things, existing at tie time ; and their work sufficiently attests, that
they did so. All acknowledge, that they were convened for the purpose
of strengthening the confederation, by enlarging the powers of the
government, and by giving efficacy to those, which it before possessed
but could not exercise. They inform us, themselves, in the instrument
they presented to the American public, that one of its objects was to
form a more perfect Union. Under sucii circumstances, we certainly
should not expect to find, in that instrument, a diminution of the powers
of the actual government.
" Previous to the adoption of the confederation, congress established
courts, which received appeals in prize causes, decided in the couits of
the respective states. This power of the government, to establish tri-
bunals for these appeals, was thought consistent with, and was founded
on, its political relations with the states. These courts did exercise
appellate jurisdiction over those cases, decided in the state courts, to
which the judicial power of the federal government extended.
"The confederation gave to congress, the poAver 'of establisliiu"-
courts, for receiving and determining, finally, appeals in all cases of
captures.'
" This power was uniformily construed to authorize those courts to
receive appeals from the sentences of state courts, and to affirm or re-
verse them. State tribunals are not mentioned; but this clause, in the
confederction, necessarily comprises them. Yet the relation between
the general and state governments was much weaker, much more lax,
under the confederation, than under the present constitution; and the
states being much more completely sovereign, their institutions were
much more independent.
" The convention, which framed the constitution, on turning their
614 CONSTITUTION OF THE U. STATES. [bOOK III.
what cases, is exclusive in the courts of the United
States, or may be made exclusive at the election of
attention to the judicial power, found it limited to a few objerts, but ex-
ercised, with respect to some of those objects, in its appellate form, over
the judgments of the state courts. They extend it, amoncr other ob-
jects, to all cases arising under the constitution, laws, and treaties of
the United States ; and in a subsequent clause declare, that in such
cases the Supreme Court shall exercise appellate jurisdiction. Nothing
seems to be given, which would justify the withdrawal of a judgment
rendered in a state court, on the constitution, laws, or treaties of the
United States, from this appellate jurisdiction.
" Great weight has always been attached, and very rightly attached,
to contemporaneous exposition. No question, it is believed, has arisen,
to which this principle applies more unequivocally, than to that now un-
der consideration.
"The opinion of the Federalist has always been considered, as of
great authority. It is a complete commentary on our- consti.ution ; and
is appealed to by all parties, in the questions, to which that instrument has
given birth. Its intrinsic merit entitles it to this high rank ; and the
part, two of its authors performed in framing the constitution, put it very
much in their power to explain the views, with which it was framed.
These essays having been published, Avhile the constitution was before
the nation, for adoption or rejection, and having been written in answer
to objections, founded entirely on the extent of its powers, and on its
diminution of state sovereignty, are entitled to the more consideration,
where they frankly avow, that the power objected to is given, and
defend it.
" In discussing the extent of the judicial power, the Federalists^' says,
' Here another question occurs : what relation would subsist between
the national and state courts, in these instances of concurrent jurisdic-
tion? I answer, that an appeal would certainly lie from the latter, to
the Supreme Court of the United States. The constitution in direct
terms gives an appellate jurisdiction to the Supreme Court, in all the
enumerated cases of federal cognizance, in which it is not to have an
original one, without a single expression to confine its operation to the
inferior federal courts. Tlie objects of appeal, not the tribunals, from
which it is to be made, are alone to lie contemplated. From this cir-
cumstance, and from the reason of the thing, it ought to be construed
to extend to the state tribunals. Either this must be the case, or the
local courts must be excluded from a concurrent jurisdiction in matters
of national concern, else the judicial authority of the Union may be
* The Federalist, No. 82.
CH. XXXVIII.] JUDICIARY JURISDICTION. Gl5
Congress. This subject was mucli discussed in tlie
case of Martin v. Hunter. ^ On that occasion the
court said^ " It will be observed, that there are two
classes of cases enumerated in the constitution, be-
tween which a distinction seems to be drawn. The first
class includes cases arising under the constitution,
laws, and treaties of the United States; cases affect-
eluded at the pleasure of every plaintiff, or prosecutor. Neither of
these conssquences ought, without evident necessity, to he involved ;
the latter would he entirely inadmissihle, as it would defeat some of the
most important and avowed purposes of the proposed government, and
would essentially embarrass its measures. Nor do I perceive any found-
ation for such a supposition. Agreeably to the remark already made,
the national and state systems are to be regarded as one ivhole. The
courts of the latter, will of course be natural auxiliaries to the execu-
tion of the laws of the Union ; and an appeal from them will as naturally
lie to that tribunal, which is destined to unite, and assimilate the princi-
ples of natural justice, and the rules of national decision. The evident
aim of the plan of the national convention is, that all the causes of the
specified classes shall, for weighty public reasons, receive tlieir original
or final determination in the courts of the Union. To confiiie, there-
fore, the general expressions, which give appellate jurisdiction to the
Supreme Court, to appeals from the subordinate federal court:?, instead
of allowing their exteiision to the state courts, would be to abridge the
latitude of the terms, in subversion of the intent, contrary to every sound
rule of interpretation.'
" A contemporaneous exposition of the constitution, certainly of not
less authority, than that, v/hich has been just cited, is the judiciary act
itself. We know that in the congress, which passed that act, were
many eminent mciabers of the convention, which formed the constitu-
tion. Not a single individual, so far as is known, supposed that part of
the act, which gives the Supreme Court appellate jurisdiction over the
judgments of the state courts, in the ccses therein specified, to be un-
authorized by the constitution." The 25th section of the judiciary act,
of 1789, ch. 20, here alluded to, as contemporaneous construction of
the constitution, is wholly founded upon the doctrine, that the appel-
late jurisdiction of the Supreme Court may constitutionally extend over
causes in state courts. See also I Kent's Comm. Lect. io; Rawle on
Const, ch. 28 ; Sergeant on Const, ch. 7.
1 1 Wheat. U. 3U4, 333.
2 Ibid. Sec also Ex parte Cabrera, 1 Wash. Cir. R.232.
616 CONSTITUTION OF THE U. STATES. [bOOK III.
ing ambassadors, other public ministers, and consuls;
and cases of admiralty and maritime jurisdiction. In
this class the expression is, that the judicial pow-
er shall extend to all cases. But in the subsequent
part of the clause, which embraces all the other cases
of national cognizance, and forms the second class,
the word 'a//' is dropped, seemingly ex mdustria.
Here, the judicial authority is to extend to controver-
sies, (not to all controversies) to which the United
States shall be a party, &lc. From this difference of
phraseology, perhaps a difference of constitutional
intention may, with propriety, be inferred. It is
hardly to be presumed, that the variation in the lan-
guage could have been accidental. It must have
been the result of some determinate reason ; and it
is not very difficult to find a reason, sufficient to sup-
port the apparent change of intention. In respect to
the first class, it may well have been the intention of
the framers of the constitution imperatively to extend
the judicial power, either in an original, or appellate
form, to all cases ; and, in the latter class, to leave it to
congress to qualify the jurisdiction, original or appel-
late, in such manner, as public policy might dictate.
§ 1743. " The vital importance of all the cases, enu-
merated in the first class, to the national sovereignty,
might warrant such a distinction. In the first place, as
to cases arising under the constituton, laws, and trea-
ties of the United States. Here the state courts
could not ordinarily possess a direct jurisdiction.
The jurisdiction over such cases could n(^t exist in
the state courts previous to the adoption of the con-
stitution. And it could not afterwards be directly
conferred on them ; for the constitution expressly
requires the judicial power to be vested in courts
CH. XXXVIII.] JUDICIARY JURISDICTION. 617
ordained and established by the United States. This
class of cases would embrace civil as well as criminal
jurisdiction, and affect not only our internal policy,
but our foreign relations. It would, therefore, be
perilous to restrain it in any manner whatsoever,
inasmuch as it might hazard the national safety.
The same remarks may be urged as to cases affecting
ambassadors, other public ministers, and consuls, who
are emphatically placed under the guardianship of the
law of nations. x\nd as to cases of admiralty and
maritime jurisdiction, the admiralty jurisdiction em-
braces all questions of prize and salvage, in the cor-
rect adjudication of which foreign nations are deep-
ly interested ; it embraces also maritime torts, con-
tracts, and offences, in which the principles of the
law and comity of nations often form an essential
inquiry. All these cases, then, enter into the na-
tional policy, afiect the national rights, and may
compromit the national sovereignty. The original
or appellate jurisdiction ought not, therefore, to be
restrained ; but should be commensurate with the
mischiefs intended to be remedied, and, of course,
should extend to all cases whatsoever.
§ 1744. " A different policy might well be adopted
in reference to the second class of cases ; for although
it might be fit, that the judicial power should extend to
all controversies, to which the United States should
be a party ; yet this power might not have been im-
peratively given, lest it should imply a right to take
cognizance of original suits brought against the Unit-
ed States, as defendants in their own courts. It
might not have been deemed proper to submit the
sovereignty of the United States, against their own
will, to judicial cognizance, either to enforce rights,
VOL. III. 78
618 CONSTITUTION OF THE U. STATES. [bOOK III.
or to prevent wrongs. And as to the other cases of
the second class, they might well be left to be exer-
cised under the exceptions and regulations, which
congress might, in their wisdom, choose to apply.
It is also worthy of remark, that congress seem, in a
good degree, in the establishment of the present ju-
dicial system, to have adopted this distinction. In
the first class of cases, the jurisdiction is not limited,
except by the subject-matter; in the second, it is
made materially to depend upon the value in con-
troversy.
§ 1745. '' We do not, however, profess to place any
impUcit reliance upon the distinction, which has here
been stated, and endeavoured to be illustrated. It has
the rather been brought into view in deference to the
legislative opinion, which has so long acted upon, and
enforced, this distinction. But there is, certainly,
vast weight in the argument, which has been urged,
that the constitution is imperative upon Cong ess to
vest all the judicial power of the United States in
the shape of original jurisdiction in the supreme and
inferior courts, created under its own authority. At
all events, whether the one construction or the other
prevail, it is manifest, that the judicial power of the
United States is unavoidably, in some cases, exclu-
sive of all state authority, and in all others, may be
made so at the election of congress. No part of the
criminal jurisdiction of the United States can, con-
sistently with the constitution, be delegated to state
tribunals. The admiralty and maritime jurisdiction
is of the same exclusive cognizance ; and it can only
be in those cases, where, previous to the constitution,
state tribunals possessed jurisdiction independent of
national authority, that they can now constitutional-
CH. XXXVIII.] JUDICIARY — ^JURISDICTION. 619
]y exercise a concurrent jurisdiction. Congress,
throughout the judicial act, and particularly in the
9th, 11th, and 13th sections, have legislated upon the
supposition, that in all the cases, to which the judicial
power of the United States extended, they might
rightfully vest exclusive jurisdiction in their own
courts."
^ 1746. The Federalist has spoken upon the same
subject in the following terms. " The only thing in the
proposed constitution, which wears the appearance of
confining the causes of federal cognizance to the
federal courts, is contained in this passage ; * The
judicial power of the United States shall be vested
in one supreme court, and in such inferior courts as
the congress shall from time to time ordain, and es-
tablish.' This might either be construed to signify,
that the supreme and subordinate courts of the union
should alone have the power of deciding those causes,
to which their authority is to extend; or simply to
denote, that the organs of the national judiciary should
be one supreme court, and as many subordinate courts,
as congress should think proper to appoint ; in other
words, that the United States should exercise the ju-
dicial powder, with which they are to be invested,
through one supreme tribunal, and a certain number
of inferior ones, to be instituted by them. The first
excludes, the last admits, the concurrent jurisdiction
of the state tribunals ; and as the first would amount
to an ahenation of state power by imphcation, the
last appears to me the most defensible construction.
§ 1747. "But this doctrine of concurrent jurisdic-
tion, is only clearly appUcable to those descriptions of
causes, of which the state courts had previous cogniz-
ance. It is not equally evident in relation to cases,
620 CONSTITUTION OF THE U. STATES. [bOOK III.
which may grow out of, and he peculiar to, the constitu-
tion to be established : for not to allow the state courts
a right of jurisdiction in such cases, can hardly be con-
sidered as the abridgement of a pre-existing authori-
ty. I mean not, therefore, to contend, that the Unit-
ed States, in the course of legislation upon the objects
intrusted to their direction, may not commit the de-
cision of causes arising upon a particular regulation to
the federal courts solely, if such a measure should be
deemed expedient ; but I hold, that the state courts
will be divested of no part of their primitive jurisdic-
tion further than may relate to an appeal. And I am
even of opinion, that in every case, in which they were
not expressly excluded by the future acts of the na-
tional legislature, they will of course take cognizance
of the causes, to which those acts may give birth.
This I infer from the nature of judiciary power, and
from the general genius of the system. The judicia-
ry power of every government looks beyond its own
local or municipal laws, and, in civil cases, lays hold
of all subjects of litigation between parties within its
jurisdiction, though the causes of dispute are relative
to the laws of the most distant part of the globe.
Those of Japan, not less than of New York, may fur-
nish the objects of legal discussion to our courts.
When in addition to this we consider the state gov-
ernments, and the national governments, as they truly
are, in the light of kindred systems, and as parts of
one whole, the inference seems to be conclusive, that
the state courts would have a concurrent jurisdiction
in all cases arising under the laws of the union, where
it was not expressly prohibited." ^
1 See The Federalist, No. 82. Id. 81.
CH. XXXVIII.] JUDICIARY JURISDICTION. 621
§ 1748. It would be difTicult, and perhaps not de-
sirable, to lay down any general rules in relation to the
cases, in which the judicial power of the courts of the
United States is exclusive of the state courts, or in
which it may be made so by congress, until they shall
be settled by some positive adjudication of the Supreme
Court. That there are some cases, in which that
power is exclusive, cannot well be doubted ; that
there are others, in which it may be made so by con-
gress, admits of as little doubt; and that in other cases
it is concurrent in the state courts, at least until con-
gress shall have passed some act excluding the con-
current jurisdiction, will scarcely be denied. * It
seems to be admitted, that the jurisdiction of the
courts of the United States is, or at least may be,
made exclusive in all cases arising: under the constitu-
tion, laws, and treaties of the United States ; ^ in all
cases affecting ambassadors, other public ministers
and consuls;^ in all cases {in their character exclusive)
of admiralty and maritime jurisdiction ; ^ in contro-
versies, to wdiich the Un.ted States shall be a party;
in controversies between two or more states ; in
^ See Cohens v. Virginia, 6 Wheat. R. 396, 897 ; 2 Elliot's Deb. 380,
381. See II Wheat. R. 472, note ; Rawle on Const. ch.21; 1 Kent's Comm.
Lect. 18, p. 370, &c. (2 edition, o95, &c.); 1 Tucker's Black. Comm. A pp.
181, 182, 183; Govtrnor of Georgia v. Madrazo, 1 Peters's Sup. R.
128, 129, Per Johnson J.
2 Cohens v. Virginia, 6 Wheat. R. 39G, 397; Houston v. Moore,
5 Wheat. R. 25 to 28 ; Id. G9, 71 ; Slocum v. Mayhunj ; 2 Wheat. R. 1 ;
Hoyt V. Gelston, 3 Wheat. R. 246, 311.
3 The Federalist, No. 82; Martin v. Hunter, 1 Wheat. R. 336, 337.
4 See 2 Elliot's Deb. 380; Cohens \. Virginia, 6 Wheat. R. 396, 397 ;
Martinv. Hunter, 1 Wheat. R. 337, 373 ; Houston v. Moore. 5 Wheat. R.
49; United States y.Bevans,S Wheat. R. 387 ; Ante, Vol. Ill,, §1665;
Ogden V. Saunders, 12 Wheat. R. 278, Johnson J.; Janneyy. Columbian
Ins. Co., 10 Wheat. R. 418.
622 CONSTITUTION OF THE U. STATES. [bOOK III.
controversies between a state and citizens of an-
other state ; and in controversies between a state and
foreign states, citizens, or subjects.^ And it is only
in those cases, where, previous to the constitution,
state tribunals possessed jurisdiction, independent of
national authority, that they can now constitutionally
exercise a concurrent jurisdiction.^ Congress, indeed,
in the Judiciary Act of 1789, (ch. 20, § 9, 11, 13,)
have manifestly legislated upon the supposition, that,
in all cases, to which the judicial power of the United
States extends, they might rightfully vest exclusive
jurisdiction in their own courts.^
§ 1749. It is a far more difficult point, to affirm the
right of congress to vest in any state court any
part of the judicial power confided by the constitution
to the national government. Congress may, indeed,
permit the state courts to exercise a concurrent
jurisdiction in many cases ; but those courts then de-
rive no authority from congress over the subject-mat-
ter, but are simply left to the exercise of such juris-
diction, as is conferred on them by the state constitu-
1 See 1 Tucker's Black. Comm. App. 181, 182, 183 ; 1 Kent's Comm.
Lect. 18, p. 370, &c. (2 edit. p. 395 to 404.)
2 Martin v. Hunter, I Wheat. R. 33G, 337 ; The Federalist, No. 27,
No. 82 ; Houston v. Moore, 5 Wheat. R. 49.
3 Ibid. See 1 Peters's Sup. Ct. R. 128, 129, 130, per Johnson J. ; Ex
parte Cabrera, 1 Wash. Cir. R. 232. — It would seem, upon the common
principles of the laws of nations, as ships of war of a government are
deemed to be under the exclusive dominion and sovereignty of their
own government, wherever they may be, and thus enjoy an extra territorial
immunity, that crimes committed on board of ships of war of the United
States, in port, as well as at sea, are exclusively cognizable, and punish-
able by the United States. The very point arose in United States v.
Btvans, (3 Wheat. R. 336, 388) ; but it was not decided. The result
of that trial, however, showed the general opinion, that the state courts
had no jurisdiction ; as the law officers of the state declined to interfere,
after tlie decision in the Supreme Court of the United States.
CH. XXXVIII.] JUDICIARY JURISDICTION. 623
tion and laws. There are, indeed, many acts of con-
gress, which permit jurisdiction over the offences
therein described, to be exercised by state magistrates
and courts ; but this (it has been said by a learned
judge,') is not, because such permission was considered
to be necessary, under the constitution, to vest a con-
current jurisdiction in those tribunals ; but because the
jurisdiction was exclusively vested in the national
courts by the judiciary act ; and consequently could
not be otherwise executed by the state courts. But,
he has added, " for I hold it to be perfectly clear, that
congress cannot confer jurisdiction upon any courts,
but such as exist under the constitution and laws of
the United States ; although the state courts may ex-
ercise jurisdiction in cases authorized by the laws of
the state, and not prohibited by the exclusive juris-
diction of the federal courts." This latter doctrine
was positively affirmed by the Supreme Court in
Martin v. Hunter ; ^ and indeed seems, upon general
principles, indisputable. In that case, the court said,
"congress cannot vest any portion of the judicial
power of the United States, except in courts, ordained
and estabUshed by itself" ^
i Mr. Justice Washington in Houston v. Moore, 5 Wheat. R. 27, 28 ;
The Federalist, No. 27 ; Id. No. 82.
2 1 Wheaton's R. 3:30. See 1 Kent's Comm. Lect. 18, p. 375, (2 edit
p. 400.)
3 Ibid. See also Houston v. Moore, 5 WhePt. R. 68, 09. See 1 Kent's
Comm. Lect. 18, p. 375, &c. (2 edit. p. 400 to 404.)— The Federalist
(No. 81) seems faintly to contend, that congress might vest the juris-
diction in the state courts, "to confer upon the existing courts of the
several states the power of determining such causes, would, perhaps,
be as much to ' constitute tribunals,' as to create new courts with the
like power." But, how is this reconcileable with the context of the
constitution? "The judicial power of the United States shall be vested
in one Supreme CourS and in such inferior courts, as congress may^
624 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1750. In regard to jurisdiction over crimes com-
mitted against the authority of the United States, it has
been held, that no part of this jurisdiction can, consist-
ently with the constitution, be delegated to state tribu-
nals.^ It is true, that congress has, in various acts,
conferred the right to prosecute for offences, penalties,
and forfeitures, in the state courts. But the latter have,
in many instances, declined the jurisdiction, and assert-
ed its unconstitutionality. And certainly there is, at
the present time, a decided preponderance of judicial
authority in the state courts against the authority of
congress to confer the power.^
^ 1751. In the exercise of the jurisdiction confided
respectively to the state courts, and those courts of the
United States, (where the latter have not appellate
jurisdiction,) it is plain, that neither can have any right
to interfere with, or control, the operations of the other.
It has accordingly been settled, that no state court
can issue an injunction upon any judgment in a court
of the United States; the latter having an exclusive au-
from time to time, ordain and establish. The judges both of the Su-
preme and inferior courts, shall hold their offices during good behav-
iour," &-c. Are not these judges of the inferior courts the same, in
whom the jurisdiction is to be vested ? Who are to appoint them ?
Who are to pay their salaries ? Can their compensation be diminished ?
All these questions must be answered with reference to the same
judges, that is, with reference to judges of the Supreme and inferior
courts of the United States, and not of state courts. See also The
Federalist, No. 45.
1 Martin v. Hunter^ 1 Wheat. R. 337 ; Homton v. Moore, 5 Wheat.
R. 3o, 69, 71, 74, 75.
2 See Sergeant on Const. Law, ch. 27, (ch. 28 :) Uniled States, v.
Campbell, 6 Hall's Law Jour. 113; United States v. Lathrop, 17 John.
R. 5 ; Cnrulh v. Freely, \ irginia Cases, 321 ; Ely v. Peck, 7 Connect-
icut R. 239 ; 1 Kent's Comm. Lect. 18, p. 370, &,c. (2 edit. p. 395 to 404.)
But see 1 Tucker's Black. Comm. App. 181, 182 ; Rawle on Const,
ch. 21.
CH. XXXVIII.] JUDICIARY JURISDICTION. 625
thority over its own judgments and proceedings.^ Nor
can any state court, or any state legislature, annul the
judgments of the courts of the United States, or de-
stroy the rights acquired under them ; ^ nor in any
manner deprive the Supreme Court of its appellate
jurisdiction;-^ nor in any manner interfere with, or con-
trol the process (whether mesne or final) of the courts
of the United States ; ^ nor prescribe the rules or
forms of proceeding, nor effect of process, in the courts
of the United States ; ^ nor issue a mandamus to an
officer of the United states, to compel him to perform
duties, devolved on him by the laws of the United
States.^ And although writs of habeas corpus have
been issued by state judges, and state courts, in cases,
where the party has been in custody under the au-
thority of process of the courts of the United States,
there has been considerable diversity of opinion, wheth-
er such an exercise of authority is constitutional ; and
it yet remains to be decided, whether it can be main-
tained.^
^ 1752. Indeed, in all cases, where the judicial
power of the United States is to be exercised, it is for
congress alone to furnish the rules of proceeding, to
1 McKim V. Voorhis, 7 Cranch's R. 279 ; 1 Kent's Coram. Lect. 19, p.
382 to 387, (2 edit. 409 to 412.)
2 Uniled States \. Peters, 5 Cranch, 115; S. C. 2 Peters's Cond. R.
202 ; 1 Kent's Comm. Lect. 19, p. 382, &c. (2 edit. p. 409, &c.)
3 Wilson V. Mason, 1 Cranch, 94 ; S. C. I Peters's Cond. R. 242 ;
1 Kent's Comm. Lect. 19, p. 382, (2 edit. 409.)
4 United States v. mison, 8 Wheat. R. 253.
5 Wayman v. Southard, 10 Wheat. R. 1. 21, 22 ; Bank of the United
States V. Halstead, 10 Wheat. R. 51.
6 JlcClung V. Silliman, G Wheat. R. 598.
^ See Sergeant on Const. Law, ch. 27, (ch. 28 ;) 1 Kent's Comm.
Lect. 18, p. 375, (2 edit. p. 400.) See 1 Tucker's Black. Comm. App.
291, 292.
VOL. III. 79
626 CONSTITUTION OF THE U. STATES. [bOOK III.
direct the process, to declare the nature and effect of
the process, and the mode, in which the judgments,
consequent thereon, shall be executed. No state legis-
lature, or state court, can have the slightest right to
interfere ; and congress are not even capable of dele-
gating the right to them. They may authorize national
courts to make general rules and orders, for the pur-
pose of a more convenient exercise of their jurisdiction;
but they cannot delegate to any state authority any
control over the national courts.^
^ 1753. On the other hand the national courts have
no authority (in cases not within the appellate jurisdic-
tion of the United States) to issue injunctions to judg-
ments in the state courts ; ^ or in any other manner to
interfere with their jurisdiction or proceedings.^
^ 1754. Having disposed of these points, w^e may
again recur to the language of the constitution for the
purpose of some farther illustrations. The language
is, that "the Supreme Court shall have appellate juris-
" diction, both as to law and fact, with such exceptions,
" and under such regulations, as the congress shall
" make."
^ 1755. In the first place, it may not be without
use to ascertain, what is here meant by appellate juris-
diction ; and what is the mode, in which it may be
exercised. The essential criterion of appellate juris-
diction is, that it revises and corrects the proceedings
in a cause already instituted, and does not create that
1 Wayman v. Southard, 10 Wlieat. R. 1 ; Palmer v. Allen, 7 Cranch,
R. 550; Gibbons v. Oirden, 9 Wheut. R. 217, 208; Bank of the United
States V. Hnlstead, 10 Wljeat. R. 51.
2 Diggs V. Wolcoll, 4 Cranch, 178. See 1 Kent's Comm. Lect. 15,
p. 301, (2 edit. 321.)
3 El parte Cabrera, 1 Wasli. Cir. R. 232; 1 Kent's Comm. Lect. 19,
p.386, (2 edit. p. 411,412.)
CH. XXXVIII.] JUDICIARY JURISDICTION. 627
cause.^ In reference to judicial tribunals, an appellate
jurisdiciion, therelbre, necessarily implies, that the sub-
ject matter has been already instituted in, and acted
upon, by some other court, whose judgment or pro-
ceedings are to be revised. This appellate jurisdiction
may be exercised in a variety of forms, and indeed in
any form, which the legislature may choose to pre-
scribe ; ^ but, still, the substance must exist, before
the form can be applied to it. To operate at all, then,
under the constitution of the United States, it is not
sufficient, that there has been a decision by some offi-
cer, or department of the United states ; it might be
by one clothed with judicial authority, and acdng in a
judicial capacity. A power, therefore, conferred by
congress on the Supreme Court, to issue a mandamus
to public officers of the United States generally, is not
warranted by the constitution ; for it is, in effect, under
such circumstances, an exercise of orio:inal jurisdiction.^
But where the object is to revise a judicial proceeding,
the mode is wholly immaterial ; and a wi'it of habeas
corpus, or mandamus, a wni of error, or an appeal, may
be used, as the legislature may prescribe.^
§ 1756. The most usual modes of exercising appel-
late jurisdiction, at least those, which are most known
in the United States, are by a writ of error, or by an
appeal, or by some process of removal of a suit from
an inferior tribunal. An appeal is a process of civil
law origin, and removes a cause, entirely subjecting
1 Marhury v. Madison, 1 Cranch, R. 175, 176; S. C. 1 Peters's Cond.
R. 267, 282 ; The Federalist, No. 81 ; JVeston v. Cily Council of Charles-
ton, 2 Peters's Sup. R. 449.
2 Ibid. 3 Ibid.
4 Ibid ; United States v. Hamilton, 3 Dall. 17; Ex parte Bolhnan, 4
Cranch, R. 75 ; Ex parte Kearney^ 1 Wheat. R. 38 ; Ex parte Crane,
5 Peters's Sup. R. 190.
628 CONSTITUTION OF THE U. STATES. [bOOK III.
the fact, as well as the law, to a review and a re-trial.
A writ of error is a process of common law origin ;
and it removes nothing for re-examination, but the law.^
The former mode is usually adopted in cases of equity
and admiralty jurisdiction ; the latter, in suits at com-
mon law tried by a jury.
§ 1757. It is observable, that the language of the
constitution is, that " the Supreme Court shall have
" appellate jurisdiction, both as to laic andfact.^^ This
provision was a subject of no small alarm and mis-
construction at the time of the adoption of the consti-
tution, as it was supposed to confer on the Supreme
Court, in the exercise of its appellate jurisdiction, the
power to review the decision of a jury in mere mat-
ters of fact ; and thus, in effect, to destroy the validity
of their verdict, and to reduce to a mere form the right
of a trial by jury in civil cases. The objection was at
once seized hold of by the enemies of the constitu-
tion ; and it was pressed with an urgency and zeal,
which were well nigh preventing its ratification.^
There is certainly some foundation, in the ambiguity of
the language, to justify an interpretation, that such a
review might consdtutionally be within the reach of the
appellate power, if congress should choose to carry it
to that extreme latitude.^ But, practically speaking,
there was not the slightest danger, that congress would
ever adopt such a course, even if it were within their
1 JViscarl V. DaucJnj, 3T>a.\l R. 321 ; S. C. I Peters's Cond. R. 144 ;
Cohens v. Virg:inia, G Wheat. R. 409 to 41'2.
2 See 1 Elliot's Debates, 121, 122 ; 2 Elliot's Debates, 346, 380 to
410; Id. 413 to 427; 3 Elliot's Debates, 139 to 157 ; 2 Amer. Museum,
425 ; Id. 534 ; Id. 540, 548, 553 ; 3 Amer. Museum, 419, 420 ; 1 Tuck.
Black. Comm. A pp. 351.
3 2 Elliot's Debates, 318, 347, 419; 3 Elliot's Debates, 140, 149;
Rawle on Const, ch. 10, p. 135.
CH. XXXVIII.] JUDICIARY JURISDICTION. 629
constitutional authority ; since it would be at variance
with all the habits, feelings, and institutions of the whole
country. At least it might be aflirmed, that congress
would scarcely take such a step, until the people were
prepared to surrender all the great securities of their
civil, as well as of their political rights and liberties ;
and in such an event the retaining of the trial by jury
would be a mere mockery. The real object of the
provision was to retain the power of reviewing the fact,
as well as the law, in cases of admiralty and maritime
jurisdiction.* And the manner, in which it is expressed,
was probably occasioned by the desire to avoid the in-
troduction of the subject of a trial by jury in civil cases,
upon which the convention were greatly divided in
opinion.
^1758. The Federalist met the objection, pressed
with much earnestness and zeal, in the following man-
ner: "The propriety of this appellate jurisdiction has
been scarcely called in question in regard to matters of
law ; but the clamours have been loud against it, as
apphed to matters of fact. Some well-intentioned men
in this state, deriving their notions from the language
and forms, which obtain in our courts, have been in-
duced to consider it, as an implied supersedure of the
trial by jury, in favour of the civil law mode of trial, which
prevails in our courts of admiralty, probates, and chan-
cery. A technical sense has been affixed to the term
* appellate,' which, in our law parlance, is commonly
used in reference to appeals in the course of the civil
law. But, if I am not misinformed, the same meaning
would not be given to it in any part of New-England.
There, an appeal from one jury to another is familiar
1 3 Elliot's Debates, 283.
630 CONSTITUTION OF THE U. STATES. [bOOK III.
both in language and practice, and is even a matter of
course, until there have been two verdicts on one side.
The word 'appellati,' therefore, will not be understood
in the same sense in New-England, as in New-York,
which shows the impropriety of a technical interpreta-
tion, derived from the jurisprudence of a particular
state. The expression, taken in the abstract, denotes
nothing more, than the power of one tribunal to review
the proceedings of another, either as to the law% or fact,
or both. The mode of doing it may depend on ancient
custom, or legislative provision ; in a new government
it must depend on ihe latter, and may be with, or with-
out, the aid of a jury, as may be judged advisable. If,
therefore, the re -examination of a fact, once determined
by a jury, should in any case be admitted under the
proposed constitution, it may be so regulated, as to be
done by a second jury, either by remanding the cause
to the court below for a second trial of the fact, or by
directing an issue immediately out of the Supreme
Court.
^ 1759. "But it does not follow, that the re-exam-
ination of a fact, once ascertained by a jury, will be
permitted in the Supreme Court. Why may it not be
said, with the strictest propriety, when a writ of error
is brought from an inferior to a superior court of law in
this state, that the latter has jurisdiction of the fact, as
well as the law ? It is true, it cannot institute a new
inquiry concerning the fact, but it takes cognizance of
it, as it appears upon the record, and pronounces the
law arising upon it. This is jurisdiction of both fact
and law ; nor is it even possible to separate them.
Though the common law courts of this state ascertain
disputed facts by a jury, yet they unquestionably have
jurisdiction of both fact and law ; and accordingly,
CH. XXXVIII.] JUDICIARY JURISDICTION. 631
when the former is agreed in the pleadings, they have
no recourse to a jury, but proceed at once to judgment.
I contend, therefore, on this ground, that the expres-
sions, 'appellate jurisdiction, both as to law and fact,'
do not necessarily imply -a re-examination in the Su-
preme Court of facts decided by juries in the inferior
courts.
§ 1760. "The following train of ideas may well be
imagined to have influenced the convention, in relation
to this particular provision. The appellate jurisdiction
of the Supreme Court, it may have been argued, will
extend to causes determinable in different modes, some
in the course of the common laiv, others in the course
of the civil law. In the former, the revision of the law
only will be, generally speaking, the proper province of
the Supreme Court ; in the latter, the re-examination
of the fact is agreeable to usage; and in some cases, of
which prize causes are an example, might be essential
to the preservation of the public peace. It is therefore
necessary, that the appellate jurisdiction should, in cer-
tain cases, extend in the broadest sense to matters of
fact. It will not answer to make an express exception
of cases, which shall have been originally tried by a
jury, because in the courts of some of the states all
causes are tried in this mode ; and such an exception
would preclude the revision of matters of fact, as well
where it might be proper, as where it might be impro-
per. To avoid all inconveniences, it will be safest to
declare generally, that the Supreme Court shall possess
appellate jurisdiction, both as to law and fact, and that
this jurisdiction shall be subject to such exceptions and
regulations, as the national legislature may prescribe.
This will enable the government to modify it in such a
manner, as will best answer the ends of public justice
and security.
632 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1761. "This view of the matter, at any rate, puts
it out of all doubt, that the supposed abolition of the
trial by jury, by the operation of this provision, is falla-
cious and untrue. The legislature of the United States
would certainly have full power to provide, that in ap-
peals to the Supreme Court there should be no re-
examination of facts, where they had been tried in the
original causes by juries. This would certainly be an
authorized exception ; but if, for the reason already in-
timated, it should be thought too extensive, it might be
qualified with a limitation to such causes only, as are
determinable at common law in that mode of trial." ^
^ 1762. These views, however reasonable they may
seem to considerate minds, did not wholly satisfy the
popular opinion ; and as the objection had a vast influ-
ence upon public opinion, and amendments were pro-
posed by various state conventions on this subject,
congress at its first session, under the guidance of the
friends of the constitution, proposed an amendment,
which was ratified by the 'people, and is now incorpo-
rated into the constitution. It is in these words. " In
suits at common law, where the value in controversy
shall exceed twenty dollars, the right of a trial by jury
shall be preserved. And no fact tried by a jury shall be
otherwise re-examined in any court of the United
States, than according to the rules of the common
law." This amendment completely struck down the
objection ; and has secured the right of a trial by jury,
in civil cases, in the fullest latitude of the common law.^
Like the other amendments, proposed by the same
cono-ress, it was coldly received by the enemies of the
1 The Federalist, No. 81. Sec also The Federalist, No. 83.
2 See 1 Tuck. Black. Comm. App. 351 ; Rawle on Const, ch. 10,
p. 135 ; Bank of HamiUon v. Dudley, 2 Peters's R. 492, 525.
CH. XXXVIII.] JUDICIARY JURISDICTION. 633
constitution, and was either disapproved by them, or
drew from them a reluctant acquiescence/ It weakened
the opposition by taking away one of the strongest points
of attack upon the constitution. Still it is a most im-
portant and valuable amendment ; and places upon
the hidi i2:round of constitutional ridit the inestimable
privilege of a trial by jury in civil cases, a privilege
scarcely inferior to that in criminal cases, which is con-
ceded by all to be essential to political and civil liberty.*
1 5 Marshall's Life of Washington, ch. 3, p. 209, 210.
2 It is due to the excellent statesmen, who framed the constitution, to
give their reasons for the omission of any provision in the constitution,
securing the trial by jury in civil cases. They were not insensible toit3
value ; but the diversity of the institutions of different states on this
subject compelled them to acquiesce in leaving it entirely to the sound
discretion of congress. The Federalist, No. 83, has given an elaborate
paper to the subject, which is transcribed at large, as a monument of
admirable reasoning and exalted patriotism.
" The objection to the plan of the convention, which has met with
most success in this state, is relative to the want of a constitutional pro-
vision for the trial by jury in civil cases. The disingenuous form, in
which this objection is usually stated, has been repeatedly adverted to
and exposed ; but continues to be pursued in all the conversations and
writings of the opponents of the plan. The mere silence of the consti-
tution in regard to civil causes, is represented, as an abolition of the trial
by jury; and the declamations, to which it has afforded a pretext, are
artfully calculated to induce a persuasion, that this pretended abolition
is complete and universal ; extending not only to every species of civil,
but even to criminal causes. To argue with respect to the latter, would
be as vain and fruitless, as to attempt to demonstrate any of those pro-
positions, which, by their own internal evidence, force conviction, when
expressed in language adapted to convey their meaning.
" With regard to civil causes, subtleties almost too contemptible for
refutation have been employed to countenance the surmise, that a thing,
which is only not provided for, is entirely abolished. Every man of dis-
cernment must at once perceive the wide difference between silence and
abolition. But, as the inventors of this fallacy have attempted to sup-
port it by certain legal maxims of interpretation, which they have per-
verted from their true meaning, it may not be wholly useless to explore
the ground they have taken.
" The maxims, on which they rely, are of this nalure : ' A specifica-
voL. III. 80
634 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1763. Upon a very recent occasion the true in-
terpretation and extent of this amendment came be-
fore the Supreme Court for decision, in a case from
tion of particulars is an exclusion of generals ;' or, ' The expression of
one thing is the exclusion of another,' Hence, say they, as the consti-
tution has established the trial by jury in criminal cases, and is silent in
respect to civil, this silence is an implied prohibition of trial by jury, in
regard to the latter.
" The rules of legal interpretation are rules of common sense, adopted
by the courts in the construction of the laws. The true test, therefore,
of a just application of them, is its conformity to the source, from which
they are derived. This being the case, let me ask, if it is consistent
with common sense to suppose, that a provision obliging the legislative
power to commit the trial of criminal causes to juries, is a privation of
its righr to authorize, or permit that mode of trial in other cases ? Is it
natural to suppose, that a command to do one thing is a prohibition to
the doing of another, which there was a previous power to do, and
which is not incompatible with the thing commanded to be done ? If such
a supposition would be unnatural and unreasonable, it cannot be rational
to maintain, that an injunction of the trial by jury, in certain cases, is an
interdiction of it in others.
" A power to constitute courts is a power to prescribe the mode of
trial : and consequently, if nothing was said in the constitution on the
subject of juries, the legislature would be at liberty, either to adopt that
institution, or to let it alone. This discretion, in rt -ard to criminal
causes, is abridged by an express injunction ; but it is left at large in
relation to civil causes, for the very reason, that there is a total silence
on the subject. The specification of an obligation to try all criminal
causes in a particular mode, excludes indeed the obligation of employ-
incr the same mode in civil causes, but does not ixhv'K]ge the poivei' of the
leL^islature to appoint that mode, if it should be thought proper. The
pretence, therefore, that the national legislature would not be at liberty
to submit all the civil causes of federal cognizance to the determination
of juries, is a pretence destitute of all foundation.
" From these observations this conclusion results, that the trial by
jury in civil cases would not be abolished ; and that the use attempted
to be made of the maxims, which have been quoted, is contrary to rea-
son, and therefore inadmissible. Even if these maxims had a precise
technical sense, corresponding with the ideas of those, who employ
them upon the present occasion, which, however, is not the case, they
would still be inapplicable to a constitution of government. In relation
to such a subject, the natural and obvious sense of its provisions, apart
from anv technical rules, is the true criterion of construction.
CH. XXXVIII.] JUDICIARY JURISDICTION. 635
Louisiana, where the question was, whether the Su-
preme Court could entertain a motion for a new trial,
and re-examine the facts tried by a jury, that being
"Having now seen, that the maxims relied upon will not bear the use
made of them, let us endeavour to ascertain their proper application.
This will be best done by examples. The plan of the convention de-
clares, that the power of congress, or, in other words, of the national
lesrislaturc, shall extend to certain enumerated cases. This specifica-
tion of particulars evidently excludes all pretension to a general legisla-
tive authority ; because an affirmative grant of special powers would
be absurd, as well as useless, if a general authority was intended.
"In like manner, the authority of the federal judicatures is declared
by the constitution to comprehend certain cases particularly specified.
The expression of those cases marks the precise limits, beyond which
the federal courts cannot extend their jurisdiction ; because the objects
of their cognizance being enumerated, the specification would be nuga-
tory, if it did not exclude all ideas of more extensive authority.
" These examples are sufficient to elucidate the maxims, which have
been mentioned, and to designate the manner, in which they should be
used.
" From what has been said, it must appear unquestionably true, that
trial by jury is in no case abolished by the proposed constitution ; and
it is equally true, that in those controversies between individuals, in
which the great body of the people are likely to be interested, that in-
stitution will remain precisely in the situation, in which it is placed by
the state constitutions. The foundation of this assertion is, that the
national judiciary will have no cognizance of them, and of course they
will remain determinable, as heretofore, by the state courts only, and in
the manner, which the state constitutions and laws prescribe. All land
causes, except where claims under the grants of different states come
into question, and all other controversies between the citizens of the
same state, unless where they depend upon positive violations of the
articles of union, by acts of the state legislatures, will belong exclu-
sively to the jurisdiction of the state tribunals. Add to this, that admi-
ralty causes, and almost all those, which are of equity jurisdiction, are
determinable under our own government, without the intervention of a
jury ; and the inference from the whole will be, that this institution, as it
exists with us at present, cannot possibly l)e aflTected, to any great ex-
tent, by the proposed alteration in our system of government.
" The friends and adversaries of the plan of the convention, if they
agree in nothing else, concur at least in the value they set upon the
trial by jury ; or, if there is any difference between them, it consists in
this : the former regard it, as a valuable safeguard to liberty ; the latter
636 CONSTITUTION OF THE U. STATES. [bOOK III.
the practice under the local law, and there be'ng an
act of corgress, authorizing the courts of the United
States m Louisiana to adopt the local practice, with
represent it, as the very palladium of free government. For my own
part, the more the operation of the institution has fallen under my ob-
servation, the more reason I have discovered for holding it in high esti-
mation ; and it would he altogether superfluous to examine, to what ex-
tent it deserves to be esteemed useful, or essential in a representative
republic, or how much ir;ore merit it may be entitled to, as a defence
against the oppressions of an hereditary monarch, than as a barrier to
the tyranny of popular magistrates in a popular government. Discus-
sions of this kind would be more curious, than beneficial, as all are sat-
isfied of the utility of the institution, and of its friendly aspect to liberty.
Put I must acknowledge, that I cannot readily discern the inseparable
connexion between the existence of liberty, and the trial by jury in
civil cases. Arbitrary impeachments, arbitrary methods of prosecuting
pretended orences, arbitrary punishments upon arbitrary convictions,
have ever appeared to me the great engines of judicial despotism; and
all tiiese have relation to criminal proceedings. The trial by jury in
criminal cases, aided by the habeas corpus act, seems therefore to be
alone concerned in the question. And both of these are provided for,
in the most ample manner, in the plan of the convention.
" It has been observed, that trial by jury is a safeguard against an
oppressive exercise of the power of taxation. This observation deserves
to be canvassed.
"It is evident, that it can have no influen<'e upon the legislature, in
regard to the amount of the taxes to be laid, to the objects, upon which
they are to be imposed, or to the rule, by which they are to be appor-
tioned. If it can have any influence, therefore, it must be upon the
mode of collection, and the conduct of the officers entrusted with the
execution of the revenue laws.
" As to the mode of collection in this state, under our own constitu-
tion the trial by jury is in most cases out of use. The taxes are usu-
ally levied by the more summary proceeding of distress and sale, as in
cases of rent. And it is acknowledged on all hands, that this is essen-
tial to the efficacy of the revenue laws. The dilatory course of a trial
at law to recover the taxes imposed on individuals, would neither suit
the exigencies of the public, nor promote the convenience of the citi-
zens. It would often occasion an accumulation of costs more burthen-
some, than the original sum of the tax to be levied.
" And, as to the conduct of the officers of the revenue, the provision
in favour of trial by jury in criminal cases, will afford the desired secu-
rity. Wilful abuses of a pui)lic authority, to the oppression of the sub-
ject, and every species of official extortion, are offences against the
CH. XXXVIII.] JUDICIARY JURISDICTION. 637
certain limitations. The Supreme Court belcl, that
no authority was given by the act to re-examine the
facts; and if it had been, an opinion was intimated of
government ; for which the persons, who commit them, may be indicted
and punislicd according to the circumstance of the case.
"The excellence of the trial hy jury in civil cases appears to depend
on circumstances, foreign to the preservation of liberty. The strongest
argument in its favour is, that it is a security against corruption. As
there is always more time, and better opportunity, to tamper with a
standing body of magistrates, than with a jury summoned for the occa-
sion, there is room to suppose, that a corrupt influence would more easily
find its way to the former, than to the latter. The force of this consid-
eration is, however, diminished by others. The sheriff, who is the sum-
moner of ordinary juries, and the clerks of courts, who have the nom-
ination of special juries, are themselves standing officers, and, acting
individually, may be supposed more accessible to the touch of corrup-
tion, than the judges, who are a collective body. It is not difficult to
see, that it would be in the power of those officers to select jurors, who
would serve the purpose of the party, as well as a corrupted bench. In
the next place, it may fairly be supposed, that there would be less diffi-
culty in gaining some of the jurors promiscuously taken from the public
mass, than in gaining men, who had been chosen by the government
for their probity and good character. But making every deduction for
these consider-itions, the trial by jury must still be a valuable check
upon corruption. It greatly multiplies the impediments to its success.
As matters now stand, it would be necessary to corrupt both court and
jury ; for where the jury have gone evidently wrong, the court will gen-
erally grant a new trial, and it would be in most cases of little use to
practice upon tiie jury, unless the court could be likewise gained.
Here, then, is a double security ; and it Avill readily be perceived, that
this complicated agency tends to preserve the purity of both institutions.
By increasing the obstacles to success, it discourages attempts to
seduce the integrity of either. The temptations to prostitution, which
the judges might have to surmount, must certainly be much fewer, while
the co-operation of a jury is necessary, than they might be, if they had
themselves the exclusive determination of all causes.
"Notwithstanding, therefore, the doubts I have expressed, as to the
essentiality of trial by jury in civil suits to liberty, I admit, that it is in
most cases, under proper regulations, an excellent method of dctermin-
ino- questions of property; and that on this account alone it would be
entitled to a constitutional provision in its favour, if it were possible to
fix with accuracy the limits, within which it ought to be comprehended.
This, however, is in its own nature an affiiir of much difficulty ; and
638 CONSTITUTION OF THE U. STATES. [bOOK III.
the most serious doubts of its constitutionality. On
that occasion the court said: "The trial by jury is
justly dear to the American people. It has always
men, not blinded by enthusiasm, must be sensible, that in a federal gov-
ernment, which is a composition of societies, whose ideas and institu-
tions in relation to the matter materially vary from each other, the diffi-
cultv must be not a little augmented. For my own part, at every new
view I take of the subject. I become more convinced of the reality of
the obstacles, which we are authoritatively informed, prevented the in-
sertion of a provision on this head in the plan of the convention.
"The great difference between the limits of the jury trial, in different
states, is not generally understood. And, as it must have considerable
influence on the sentence, we ought to pass upon the omission complain-
ed of, in regard to this point, an explanation of it is necessary. In this
state, our judicial establishments resemble more nearly, than in any
other, those of Great Britain. We have courts of common law, courts
of probates, (analogous in certain matters to the spiritual courts in Eng-
land,) a court of admiralty, and a court of chancery. In the courts of
common law only the trial by jury prevails, and this with some excep-
tions. In all the others, a single judge presides, and proceeds in gen-
eral, either according to the course of the canon, or civi[ law, without
the aid of a jury. In New-Jersey there is a court of chancery, which
proceeds like ours, but neither courts of admiralty, nor of probates, in
the sense, in which these last are established with us. In that state,
the courts of common law have the cognizance of those causes, which
with us are determinable in the courts of admiralty and of probates, and
of course the jury trial is more extensive in New-Jersey, than in New-
York. In Pennsylvania this is perhaps still more the case ; for there is
no court of chancery in that state, and its common law courts have
equity jurisdiction. It has a court of admiralty, but none of probates,
at least on the plan of ours. Delawaie has in these respects imitated
Pennsylvania. IVJaryland approaches more nearly to New-York, as does
also Virginia, except that the latter has a plurality of chancellors.
North Carolina bears most affinity to Pennsylvania; South Carolina to
Virginia. I believe, however, that in some of those states, which have
disthict courts of admiralty, the causes depending in them are triable by
luries. In Georgia there are none but common law courts, and an ap-
peal of course lies from the verdict of one jury to anoUier, which is
called a special jury, and for which a particular mode of appointment
is marked out. In Connecticut they have no distinct courts, either of
chancery, or of admiralty, and their courts of probates have no jurisdic-
tion of causes. Their common law courts have admiralty, and, to a
certain extent, equity jurisdiction. In cases of importance, their gene-
CH, XXXVIII.] JUDICIARY JURISDICTION. 639
been an object of deep interest and solicitude, and
every encroachment upon it has been watched with
great jealousy. The right to such a trial is, it is be-
ral assembly is the only court of chancery. In Connecticut, therefore,
the trial by jury extends in practice further, than in any other state yet
mentioned. Rhode-Island is, I believe, in this particular, pretty much
in the situation of Connecticut. Massachusetts and New-Hampshire, in
recrard to the blending of law, equity, and admiralty jurisdictions, are in
a similar predicament. In the four eastern states, the trial by jury not
only stands upon a broader foundation, than in the other states, but it is
attended with a peculiarity unknown, in its full extent, to any of them.
There is an appeal of course from one jury to another, till there have
been two verdicts out of three on one side.
" From this sketch it appears, that there is a material diversity, as
*well in the modification, as in the extent of the institution of trial by
jury in civil cases, in the several states ; ami from this fact, these obvi-
ous reflections flow; first, that no general rule could have been fixed
upon by the convention, which would have corresponded with the cir-
cumstances of all the states ; and, secondly, that more, or at least as
much might have been hazarded, by taking the system of any one state
for a standard, as by omitting a provision altogether, and leaving the
matter, as has been done, to legislative regulation.
"The propositions, which have been made for supplying the omission,
have rather served to illustrate, than to obviate the difficulty of the
thing. The minority of Pennsylvania have proposed this mode of ex-
pression for the purpose, ' Trial by jury shall be as heretofore;' and
this, I maintain, would be inapplicable and indeterminate. The Unitedj
States, in their collective capacity, are the object, to which all general^
provisions in the constitution must be understood to refer. Now, it isj
evident, that though trial by jury, with various limitations, is known in
each state individually, yet in the United States, as such, it is, strictly
speaking, unknown; because the present federal government has no
judiciary power whatever ; and consequently there is no antecedent
establishment, to which the term 'heretofore ' could properly relate. It
would, therefore, be destitute of precise meaning, and inoperative from
its uncertainty.
" As, on the one hand, the form of the provision would not fulfil the
intent of its proposers ; so, on the otlier, if I apprehend that intent
lightly, it would be in itself inexpedient. I presume it to be, that causes
in the federal courts should be tried by jury, if in the state where the
courts sat, that mode of trial would obtain in a similar case in the state
courts; that is to say, admiralty causes should be tried in Connecticut
by a jury, in New- York without one. The capricious operation of so
640 CONSTITUTION OF THE U. STATES. [bOOK III.
lieved, ini:oiporated into, and secured in every state
constitution in the Union ; and it is found in the con-
stitution of Louisiana. One of the strongest objec-
dissimilar a method of trial in the same cases, under the same govern-
ment, is of itself sufficient to indispose every well-regulated judgment
towards it. AVhether the cause should be tried with, or without a jury,
would depend, in a great number of cases, on the accidental situation
of the court and parties.
"But this is not, in my estimation, the greatest objection. I feel a
deep and deliberate conviction, that there are many cases, in which the
trial by jury is an ineligible one. I think it so particularly in suits,
which concern the public peace with foreign nations ; that is, in most
cases, where the question turns wholly on the laws of nations. Of this
nature, among others, are all prize causes. Juries cannot be supposed
competent to investigations, that require a thorough knowledge of the
laws and usages of nations ; and they will sometimes be under the in-
fluence of impressions, which will not suffer them to pay sufficient re-
gard to those considerations of public policy, which ought to guide their
inquiries. There would of course be always danger, that the rights of
other nations might be infringed by their decisions, so as to afford occa-
sions of reprisal and war. Though the true province of juries be to
determine matters of fact, yet, in most cases, legal consequences are
complicated with fact in such a manner, as to render a separation im-
practicable.
«It will add great weight to this remark, in relation to prize causes,
to mention, that the method of determining them has been thought
worthy of particular regulation, in various treaties between different
powers of Europe, and that, pursuant to such treaties, they arc deter-
minable in Great Britain, in the last resort, before the king himself in
his privy council, where the fact, as well as the law, undergoes a re-
examination. This alone demonstrates the impolicy of inserting a fun-
damental provision in the constitution, which would make tlie Gtate sys-
tems a standard for the national government in the article under con-
sideration, and the danger of encumbering the government with any
constitutional provisions, the propriety of which is not indisputable.
'' My convictions are equally strong, that great advantages result
from the separation of the equity from the law jurisdiction ; and that
the causes, which belong to ihe former, Avould be improperly committed
to juries. The great and primary use of a court of equity is to give
relief in exlraordinary cases, which are exceptions to general rules. To
unite the jurisdiction of such cases with the ordinary jurisdiction, must
have a tendency to unsettle the general rules, and to subject every case
that arises to a special determination; while a separation between the
CH. XXXVIII.] JUDICIARY JL'llISOICTIOX. 641
tions, originally taken against the constitution of the
United States, was the want of an express provision
securing the right of trial by juiy in civil cases. As
jurisdictions lias the contrary effect of rendering one a sentinel over
the other, and of keeping each within the expedient limits. Besides
this, the circumstances, that constitute cases proper for courts of equity,
are in many instances so nice and intricate, that they are incompatihle
with the genius of trials hy jury. They require often such long and
critical investigation, as would he impracticable to men called occasion-
ally from their occupations, and obliged to decide, before they were
permitted to return to them. The simplicity and expedition, which
form the distinguishing characters of this mode of trial, require, that the
matter to be decided should be reduced to some single and obvious
point; while the litigations, usual in chancery, frequently comprehend a
long train of minute and independent particulars.
" It is true, that the separation of the equity from the legal jurisdic-
tion is peculiar to the Knglish system of jurisprudence ; the model,
which has been followed in several of the states. But it is equally true,
that the trial by jury has been unknown in every instance, in which
they have been united. And the separation is essential to the preser-
vation of that institution in its pristine purity. The nature of a court of
equity will readily permit the extension of its jurisdiction to matters of
law ; but it is not a little to be suspected, that the attempt to extend the
jurisdiction of tiie courts of law to matters of uquity will not only be
unproductive of the advantages, which may be derived from courts of
chancery on the plan, upon which they are established in this state ; but
will tend gradually to change the nature of the courts of law, and to
undermine the trial by jury, by introducing questions too complicated
for a decision in that mode.
"These appear to be conclusive reasons against incorporating the
systems of all the states, in the formation of the national judiciary,
according to what may be conjectured to have been the intent of the
Pennsylvania minority. Let us now examine, how far the proposition
of Massachusetts is calculated to remedy the supposed defect.
"It is in tills form: 'In civil actions between citizens of different
states, every issue of fact, arising in actions at common law, may be tried
by a jury, if the parties, or either of them, request it.'
"This, at best, is a proposition confined to one description of causes;
and the inference is fair, either that the Massachusetts convention con-
sidered that, as the only class of federal causes, in which the trial by
jury would be proper ; or, that, if desirous of a more extensive provision,
they found it impracticable to devise one, which would properly answer
the end. If the first, the omission of a regulation, respecting so partial
an object, can never be considered, as a material imperfection in tJie
VOL. III. 81
642 CONSTITUTION OF THE U. STATES. [bOOK III.
soon as the constitution was adopted, this right was
secured by the seventh amendment of the consti-
tution proposed by congress ; which received an as-
system. If the last, it affords a strong corroboration of the extreme
difficulty of the thing.
" But this is not all. If we advert to the observations already made
respecting the courts, that subsist in the several states of the Union,
and the different powers exercised by them, it will appear, that there
are no expressions more vague and indeterminate, than those, which
have been employed to characterize that species of causes, which it is
intended shall be entitled to a trial by jury. In this state, the bounda-
ries between actions at common law, and actions of equitable jurisdic-
tion, are ascertained in conformity to the rules, which prevail in Eng-
land upon that subject. In many of the other states, the boundaries are
less precise. In some of them every cause is to be tried in a court of
common law ; and upon th.it foundation every action may be considered,
as an action at common law, to be determined by a jury, if the parties,
or either of them, choose it. Hence, the same irregularity and confu-
sion would be introduced by a compliance with this proposition, that I
have already noticed, as resulting from the regulation proposed by the
Pennsylvania minority. In one state a cause would receive its deter-
mination from a jury, if the parties, or either of them, requested it ; but
in another state, a cause exactly similar to the other must be decided
without the intervention of a jury, because the state tribunals varied,
as to common law jurisdiction.
" It is obvious, therefore, that the Massachusetts proposition cannot
operate, as a general regulation, until some uniform plan, with respect
to the limits of common law and equitable jurisdictions, shall be adopted
by the different states. To devise a plan of that kind is a task arduous
in itself, and which it would require much time and reflection to mature.
It would be extremely difficult, if not impossible, to suggest any general
regulation, that would be acceptable to all the states in the Union, or
that would perfectly quadrate with the several state institutions.
" It may be asked, why could not a reference have been made to the
constitution of this state, taking that, which is allowed by me to be a
good one, as a standard for the United States ? I answer, that it is not
very probable the other states should entertain the same opinion of our
institutions, which we do ourselves. It is natural to suppose, that they
are more attached to their own, and that each would struggle for the
preference. If the plan of taking one state, as a model for the whole,
had been thought of in the convention, it is to be presumed, that the
adoption of it in that body would have been rendered difficult by the
predilection of each representation in favour of its own government;
and it must be uncertain, which of the states would have been taken.
CH. XXXVIII.] JUDICIARY JURISDICTION. 643
sent of the people so general, as to establish its
importance, as a fundamental guarantee of the rights
and liberties of the people. This amendment de-
as the model. It has been shown, that many of them would be improper
ones. And I leave it to conjecture, whether, under all circumstances,
it is most likely, that New York, or some other state, would have been
preferred. But admit, that a judicious selection could have been
effected in the convention, still there would have been great danger of
jealousy and disgust in the other states, at the partiality, which had
been shown to the institutions of one. The enemies of the plan would
have been furnished with a fine pretext for raising a host of local preju-
dices against it, which perhaps might have hazarded, in no inconsidera-
ble degree, its final establishment.
"To avoid the embarrassments of a definition of the cases, which the
trial by jury ought to embrace, it is sometimes suggested by men of
enthusiastic temper;?, that a provision might have been inserted for
establishing it in all cases whatsoever. For this, I believe, no precedent
is to be found in any member of the Union ; and the considerations,
which have been stated in discussing the proposition of the minority of
Pennsylvania, must satisfy every sober mind, that the establishment of
the trial by jury in all cases would have been an unpardonable error in
the plan.
" In short, the more it is considered, the more arduous will appear
the task of fashioning a provision in such a form, as not to express too
little to answer the purpose, or too much to be advisable ; or which
might not have opened other sources of opposition to the great and
essential object of introducing a firm national government.
" I cannot but persuade myself, on the other hand, that the different
lights, in which the subject has been placed in the course of these ob-
servations, will go far towards removing in candid minds the apprehen-
sions they may have entertained on the point. They have tended to
show, that the security of liberty is materially concerned only in the
trial by jury in criminal cases, which is provided for in the most ample
manner in the plan of the convention ; that, even in far the greatest
proportion of civil cases, those, in which the great body of the commu-
nity is interested, that mode of trial will remain in full force, as estab-
lished in the state constitutions, untouched and unaffected by the plan
of the convention ; that it is in no case abolished by that plan ; and that
there are great, if not insurmountable difficulties in the way of making
any precise and proper provision for it, in the constitution for the United
States.
" The best judges of the matter will be the least anxious for a con-
stitutional establishment of the trial by jury in civil cases, and will be
the most ready to admit, that the changes, which are continually hap-
644 CONSTITUTION OF THE U. STATES. [bOOK III.
clares, that " in suits at common law, where the value
in controversy shall exceed twenty dollars, the right
of trial by jury shall be pi-eserved ; and no fact, once
tried by a jury, shall be otherwise re-examined in
any court of the United States, than according to the
pening in the atfairs of society, may render a different mode of deter-
mininf questions of property preferable in many cases, in Avhich that
mode of trial now prevails. For my own part, I acknowledge myself to
be convinced, that even in this state it might be advantageously ex-
tended to some cases, to which it does not at present apply, and might
as advantageously be abridged in others. It is conceded by all reason-
able men, that it ought not to obtain in all cases. The examples of in-
novations, which contract its ancient limits, as well in these states, as in
Great Britain, afford a strong presumption, that its former extent has
been found inconvenient; and give room to suppose, that future experi-
ence may discover the propriety and utility of other exceptions. I sus-
pect it to be impossible in the nature of the thing to fix the salutary
point, at which the operation of the institution ought to stop ; and this
is with me a strong argument for leaving the matter to the discretion of
the legislature.
"Tliis is now clearly understood to be the case in Great Britain, and
it is equally so in the state of Connecticut. And yet it may be safely
affirmed, tliat more numerous encroachments have been made upon the
trial by jury in this state since the revolution, though provided for by a
positive article of our constitution, tluin has happened in the same time
either in Connecticut, or Great Britain. It may be added, that these
encroachments have generally originated with the men, who endeavour
to persuade tlie people, they are the warmest defenders of popular lib-
erty, but who have rarely suffered constitutional obstacles to arrest
them in a favourite career. The truth is, that the general genius of a
government is all, that can be substantially relied upon for permanent
effects. Particular provisions, though not altogether useless, have far
less virtue and efficacy, than are commonly ascribed to them ; and the
want of tiiem will never be with men of sound discernment a decisive
objection to any plan, whicji oxljibits the leading cliaracters of a good
government.
"It certainly sounds not a little Iiarsli and extraordinary to affirm, that
there is no security for liberty in a constitution, whicii expressly estab-
lishes a trial by jury in criminal cases, because it does not do it in civil
also ; while it is a notorious fact, that Connecticut, which has been
always regarded, as the most popular state in the Union, can boast of
no constitutional provision f ;r either." The Federalist, No. 83.
See also 2 Elliot's Debates, 34G, 3S0 to 410 ; Id. 413 to 427 ; 3 Elliot's
Debates, 131, 132, 137, 141, 153 : Id. 283,284, 301, 302.
CH. XXXVIII.] JUDICIARY JURISDICTION. 645
rules of the common law." At this time there were
no states in the Union, the basis of whose jurispru-
dence was not essentially that of the common law in
its widest meaning ; and probably no states were
contemplated, in which it would not exist. The
phrase, ' common law,' found in this clause, is used in
contradistinction to equity, and admiralty, and maritime
jurisprudence. The constitution had declared, in the
third article, 'that the judicial pow^er shall extend to
all cases in law ami equitij arising under this constitu-
tion, the laws of the United States, and treaties made,
or which shall be made under their authority,' &,c., and
' to all cases of admiralty and maritime jurisdiction,^
It is well known, that in civil causes, in courts of equity
and admiralty, juries do not intervene ; and that courts
of equity use the trial by jury only in extraordinary
cases to inform the conscience of the court. When,
therefore, we find, that the amendment requires, that
the right of trial by jury shall be preserved in suits at
common law, the natural conclusion is, that this dis-
tinction was present to the minds of the framers of the
amendment. By common law they meant, what the
constitution denominated in the third article ' law ; '
not merely suits, which the common law recognized
among its old and setded proceedings, but suits, in
which legal rights were to be ascertained and deter-
mined, in contradisdnction to those, in which equitable
rights alone were recognized, and equitable remedies
were administered; or in which, as in the admiralty, a
mixture of public law, and of maritime law and equity,
was often found in the same suit. Probably there
w^ere few, if any, states in the Union, in which some
new legal remedies differing from the old common law
forms were not in use ; but in which, however, the
646 CONSTITUTION OF THE U. STATES. [bOOK III.
trial by jury intervened, and the general regulations in
other respects were according to the course of the
common law. Proceedings in cases of partition, and
of foreign and domestic attachment, might be cited, as
examples variously adopted, and modified. In a just
sense, the amendment then may well be construed to
embrace all suits, which are not of equity and admiralty
jurisdiction, whatever may be the peculiar form, which
they may assume to settle legal rights. And congress
seem to have acted with reference to this exposition
in the judiciary act of 1789, ch. 20, (which was con-
temporaneous with the proposal of this amendment ;)
for in the ninth section it is provided, that ' the trial of
issues in fact in the district courts in all causes, except
civil causes of admiralty and maritime jurisdiction^
shall be by jury ; ' and in the tweltlh section it is pro-
vided, that ' the trial of issues in fact in the circuit
courts shall in all suits, except those of equity, and of
admiralty and maritime jurisdiction, be by jury.' And
again, in the thirteenth section, it is provided, that * the
trial of issues in fact in the supreme court, in all actions
at law against citizens of the United States, shall be
by jury.'
^ 1764. "But the other clause of the amendment is
■still more important ; and we read it, as a substantial
and independent clause. 'No fact tried by a jury shall
be otherwise re-examinable, in any court of the United
States, than according to the rules of the common law.'
This is a prohibition to the courts of the United States
to re-examine any facts tried by a jury in any other
manner. The only modes, known to the common law,
to re-examine such facts, are the granting of a new
trial by the court, where the issue was tried, or to
which the record was properly returnable ; or the
CH. XXXVIII.] JUDICIARY JURISDICTION. 647
award of a venire facias de novo by an appellate court,
for some error of law, which intervened in the pro-
ceedings. The judiciary act of 1789, ch. 20, sec. 17,
has given to all the courts of the United States 'power
to grant new trials in cases, where there has been a
trial by jury, for reasons, for which new trials have
usually been granted in the courts of law.' And the
appellate jurisdiction has also been amply given by the
same act (sec. 22, 24) to this court, to redress errors
of law ; and for such errors to award a new trial in
suits at law, which have been tried by a jury.
^ 1765. "Was it the intention of congress, by the
general language of the act of 1824, to alter the ap-
pellate jurisdiction of this court, and to confer on it
the power of granting a new trial by a re-examination
of the facts tried by the jury ? to enable it, after trial
by jury, to do that in respect to the courts of the
United States, sitting in Louisiana, which is denied to
such courts, sitting in all the other states in the Union 1
We think not. No general words, purporting only to
regulate the practice of a particular court, to conform
its modes of proceeding to those prescribed by the
state to its own courts, ought, in our judgment, to re-
ceive an interpretation, which would create so impor-
tant an alteration in the laws of the United States,
securing the trial by jury. Especially ought it not to
receive such an interpretation, when there is a power
given to the inferior court itself to prevent any dis-
crepancy between the state laws, and the laws of the
United States ; so that it would be left to its sole dis-
cretion to supersede, or to give conclusive effect in the
appellate court to the verdict of the jury.
^ 1766. "If, indeed, the construction contended for
at the bar were to be given to the act of congress, we
648 CONSTITUTION OF THE U. STATES. [bOOK III.
entertain the most serious doubts, whether it would not
be unconstitutional. No court ought, unless the terms
of an act rendered it unavoidable, to give a construc-
tion to it, which should involve a violation, however
unintentional, of the constitution. The terms of the
present act may well be satisfied by limiting its opera-
tion to modes of practice and proceeding in the court
below, without changing the effect or conclusiveness of
the verdict of the jury upon the facts litigated at the
trial Nor is there any inconvenience from this con-
struction ; for the party has still his remedy, by bill of
exceptions, to bring the facts in review before the ap-
pellate court, so far as those facts bear upon any ques-
tion of law arising at the ti'ial ; and if there be any
mistake of the facts, the court below is competent to
redress it, by granting a new trial." ^
§ 1767. The appellate jurisdiction is to be "with
such exceptions, and under such regulations, as the
congress shall prescribe." But, here, a question is
presented upon the construction of the constitution,
whether the appellate jurisdiction attaches to the Su-
preme Court, subject to be withdrawn and modified by
congress ; or, whether an act of congress is necessary
to confer the jurisdiction upon the court. If the for-
mer be the true construction, then the entire appellate
jurisdiction, if congress should make no exceptions or
regulations, would attach propm vigore to the Supreme
Court. If the latter, then, notwithstanding the imper-
ative language of the constitution, the Supreme Court
is lifeless, until congress have conferred power on it.
And if congress may confer power, they may repeal it.
So that the whole efficiency of the judicial pow^er is
left by the constitution wholly unprotected and inert, if
congress shall refrain to act. There is certainly very
1 Parsons v. Bedford, 3 Peters's R. 446 to 449.
CH. XXXVIII.] JUDICIARY JURISDICTION. 649
strong grounds to maintain, that the language of the
constitution meant to confer the appellate jurisdiction
absolutely on the Supreme Court, independent of any
action by congress ; and to require this action to divest
or regulate it. The language, as to the original juris-
diction of the Supreme Court, admits of no doubt. It
confers it without any acdon of congress. Why should
not the same language, as to the appellate jurisdiction,
have the same interpretation? It leaves the power of
congress complete to make exceptions and regulations;
but it leaves nothing to their inaction. This construc-
tion was asserted in argument at an earlier period of
the constitution.-^ It was at that time denied ; and it
was held by the Supreme Court, that, if congress should
provide no rule to regulate the proceedings of the Su:
preme Court, it could not exercise any appellate juris-
diction.^ That doctrine, however, has, upon more ma-
ture deliberation, been since overturned ; and it has
been asserted by the Supreme Court, that, if the judi-
cial act (of 1789) had created the Supreme Court,
without defining, or limiting its jurisdiction, it must
have been considered, as possessing all the jurisdiction,
which the constitution assigns to it. The legislature
could have exercised the power possessed by it of creat-
ing a Supreme Court, as ordained by the constitution;
and,- in omitting to exercise the right of excepting
from its constitutional powers, would have necessarily
left those constitutional powers undiminished. The
appellate powers of the Supreme Court are not given
by the judicial act (of 1789). They are given by
1 Chisholm v. Georgia, 2 Dall. 419, and Iredell J.'s Opinion, p. 432;
S. C. 2 Peters's Cond. R. 635, 638.
2 rViscast V. Dauchy, 3 Dall. 321, 326 ; S. C. J Peters's Cond. R. 144,
146.
VOL. III. 82
650 CONSTITUTION OF THE U. STATES. [bOOK III.
the constitution. But they are limited, and regulated
by that act, and other acts on the same subject.^ And
where a rule is provided, all persons will agree, that
it cannot be departed from.
^ 1768. It should be added, that, while the jurisdic-
tion of the courts of the United States is almost
wholly under the control of the regulating power of
congress, there are certain incidental powers, which
are supposed to attach to them, in common with all
other courts, when duly organized, without any posi-
tive enactment of the legislature. Such are the
power of the courts over their own officers, and the
power to protect them and their members from being
disturbed in the exercise of their functions.^
^ 1769. Although the judicial department under
the constitution would, from the exposition, which
has thus been made of its general powers and func-
tions, seem above all reasonable objections, it was
assailed with uncommon ardour and pertinacity in
the state conventions, as dangerous to the liberties of
the people, and the rights of the states ; as unlimited
in its extent, and undefined in its objects ; as in some
portions of its jurisdiction wholly unnecessary, and in
others vitally defective. In short, the objections were
of the most opposite characters ; and, if yielded to,
would have left it without a shadow of power, or
efficiency.^
1 Durousseau v. United States, G Cranch, 307, 313, 314 ; United
Slates y. Moore, 3 Cranch, 159, 170, 172.
2 Ex parte Bollman, 4 Cranch, 75 ; Ex parte Kearney, 7 Wheat. R.
38, 44 ; Anderson v. Dinm, G Wheat. R. 204.
3 See 2 Elliot's Debates, 380 to 427 ; 1 Elliot's Debates, 119 to 122;
3 Elliot's Debates, 125 to 1 45 ; 2 Amer. Museum, 422, 429, 435 ; 3 Amer-
Museum, G2, 72 ; Id. 419, 420 ; Id. 534, 540, 546.
CH. XXXVJir.] JUDICIARY JUSISDICTION. G51
§ 1770. The Federalist has concluded its remarks
on the judicial department in the following manner:
"The amount of the observations hitherto made on
the authority of the judicial department is this: —
That it has been carefully restricted to those causes,
which are manifestly proper for the cognizance of
the national judicature ; that, in the partition of this
authority, a very small portion of original jurisdiction
has been reserved to the Supreme Court, and the
rest consigned to the subordinate tribunals ; that the
Supreme Court will possess an appellate jurisdiction,
both as to law and fact, in all the cases referred to
them, but subject to any exceptions and regulations^
which may be thought advisable ; that this appellate
jurisdiction does, in no case, abolish the trial by jury ;
and that an ordinary degree of prudence and integrity
in the national councils, will ensure us solid advan-
tages from the establishment of the proposed judi-
ciary, without exposing us to any of the inconveni-
ences, which have been predicted from that source."^
^ 1771. The functions of the judges of the courts
of the United States are strictly and exclusively judi-
cial. They cannot, therefore, be called upon to ad-
vise the president in any executive measures ; or to
give extrajudicial interpretations of law ; or to act,
as commissioners in cases of pensions, or other like
proceedings.^
1 The Federalist, No. 81. See on the Judiciary the Journal of Con-
vention, p. 98, 99, 100, 188, 189, 295, 301.
2 5 Marshall's Life of Washington, ch. 6, p. 433, 441 ; Serg-cant on
Const, ch. 29, p. 3(53, (2 edit. ch. 31, p. 37.5) ; Marhuri/ v. .Madison, 1
Cranch, 171 ; Deivhursl v. Coidlhart, 3 Dail. R. 409 ; HmjhunVs Case,
2 Dall. R. 409, 410, and note Ibid., and p. 411 ; Sergeant on Const, ch.
33, p. 391, (ch. 34, p. 40 J, 2d edition.)
652 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1772. The next clause of the first section of the
third article is : " The trial of all crimes, except in
" cases of impeachment, shall be by jury ; and such
" trial shall be held in the state, where such crimes
" shall have been committed. But when not com-
"mitted within any state, the trial shall be at such
"place or places, as the congress may by law have di-
" rected."
§ 1773. It seems hardly necessary in this place
to expatiate upon the antiquity, or importance of
the trial by jury in criminal cases. It was from very
early times insisted on by our ancestors in the parent
country, as the great bulwark of their civil and
political hberties, and watched w^th an unceasing
jealousy and solicitude. The right constitutes the
fundamental articles of Magna Charta,^ in which
it is declared, "nullus homo capiatur, nee imprisoiie-
tm\ aid exulet, aut aliquo modo destruatiir, Sfc;
nisi per legale judicium parium suorum, vel per legem
terrce;^^ no man shall be arrested, nor imprisoned,
nor banished, nor deprived of hfe, &.c. but by the
judgment of his peers, or by the law of the land.
The judgment of his peers here alluded to, and com-
monly called in the quaint language of former times
a trial per pais, or trial by the country, is the trial by
a jury, who are called the peers of the party accused,
being of the like condition and equality in the state.
When our more immediate ancestors removed to
America, they brought this great privilege with them,
as their birth-right and inheritance, as a part of that
admirable common law, which had fenced round, and
interposed barriers on every side against the ap-
1 Magna Charta, ch. 29, (9 Henry 3d) ; 2 Inst. 45; 3 Black. Comra.
349; 4 Black. Comm. 349.
CH. XXXVIII.] JUDICIARY TRIAL BY JURY. 653
proaches of arbitrary power.^ It is now incorporated
into all our state constitutions, as a fi^damental right ;
and the constitution of the United states would have
been justly obnoxious to the most conclusive objec-
tion, if it had not recognised, and confirmed it in the
most solemn terms.
^ 1774. The great object of a trial by jury in crim-
inal cases is, to guard against a spirit of oppression
and tyranny on the part of rulers, and against a spirit
of violence and vindictiveness on the part of the
people. Indeed, it is often more important to guard
against the latter, than the former. The sympathies
of all mankind are enhsted against the revenge and
fury of a single despot ; and every attempt will be
made to screen his victims. But how difficult is it to
escape from the vengeance of an indignant people,
roused into hatred by unfounded calumnies, or stimu-
lated to cruelty by bitter political .enmities, or un-
measured jealousies? The appeal for safety can, under
such circumstances, scarcely be made by innocence in
any other manner, than by the severe control of courts
of justice, and by the firm and impartial verdict of a
jury sworn to do right, and guided solely by legal evi-
dence and a sense of duty. In such a course there is
a double security against the prejudices of judges, who
may partake of the wishes and opinions of the govern-
ment, and against the passions of the multitude, w^ho
may demand their victim with a clamorous precipitancy.
So long, indeed, as this palladium remains sacred and
inviolable, the liberties of a free government cannot
wholly fall.^ But to give it real efficiency, it must be
1 2 Kent's Comm. Lect. 24, p. 1 to 9, (2d edition, p. I to 12) ; 3 Elliot's
Debates, 331, 399.
2 4 Black. Comm 349, 350.
654 CONSTITUTION OF THE U. STATES. [bOOK III.
preserved in its purity and dignity ; and not, with a
view to slight inconveniences, or imaginary burthens,
be put into the hands of those, who are incapable of
estimating its worth, or are too inert, or too ignorant,
or too imbecile, to wield its potent armour. Mr. Jus-
tice Blackstone, with the warmth and pride becoming
an EngHshman living under its blessed protection, has
said : " A celebrated French writer, who concludes,
that because Rome, Sparta, and Carthage have lost
their liberties, therefore those of England in time must
perish, should have recollected, that Rome, Sparta, and
Carthage, at the time, when their liberties were lost,
were strangers to the trial by jury." ^
^ 1775. It is observable, that the trial of all crimes
is not only to be by jury, but to be held in the state,
where they are committed. The object of this clause
is to secure the party accused from being dragged to
a trial in some distant state, away from his friends, and
witnesses, and neighbourhood ; and thus to be subject-
ed to the verdict of mere strangers, who may feel no
common sympathy, or who may even cherish animosi-
ties, or prejudices against him. Besides this ; a trial
in a distant state or territory might subject the party
to the most oppressive expenses, or perhaps even to the
inability of procuring the proper witnesses to estabUsh
his innocence. There is little danger, indeed, that con-
1 3 Black. Coinm. 379. See also Id. 381. — I commend to the dil-
igent perusal of every scholar, and every legislator, the noble eulogium
of Mr. Justice Blackstone on the trial by jury. It is one of the most
beautiful, as well as most forcible, expositions of that classical jurist.
See 3 Black. Comm. 379, 380, 381 ; 4 Black. Comm. 349, 350. See also
De Lolme, B. 1, ch. 13, B. 2, ch. 16. Dr. Paley's chapter on the admin-
istration of justice is not the least valuable part of his work on Moral
Philosophy. See B. 6, ch. 8. See also 2 Wilson's Law Lect. P. 2, ch.
6, p. 305, &c.
CH. XXXVIII.] JUDICIARY TRIAL BY JURY. 655
gress would ever exert their power in such an oppres-
sive, and unjustifiable a manner.^ But upon a subject,
so vital to the security of the citizen, it was fit to leave
as litde as possible to mere discretion. By the com-
mon law, the trial of all crimes is required to be in
the county, where they are committed. Nay, it original-
ly carried its jealousy still farther, and required, that the
jury itself should come from the vicinage of the place,
where the crime was alleged to be committed.^ This
was certainly a precaution, which, however justifiable
in an early and barbarous state of society, is Httle com-
mendable in its more advanced stages. It has been
justly remarked, that in such cases to summon a jury,
labouring under local prejudices, is laying a snare for
their consciences ; and though they should have virtue
and vigour of mind sufficient to keep them upright, the
parties will grow suspicious, and indulge other doubts
of the impartiality of the trial.^ It was doubtless by
analogy to this rule of the common law, that all criminal
trials are required to be in the state, where committed.
But as crimes may be committed on the high seas,
and elsewere, out of the territorial jurisdiction of a
state, it was indispensable, that, in such cases, congress
should be enabled to provide the place of trial.
§ 1776. But, although this provision of a trial by
jury in criminal cases is thus constitutionally preserved
to all citizens, the jealousies and alarms of the oppo-
nents of the constitution were not quieted. They in-
sisted, that a bill of rights was indispensable upon
other subjects, and that upon this, farther auxiliary
1 See 2 Elliot's Debates, 399, 400, 407, 420.
2 2 Hale, P. C. ch. 24, p. 260, 264 ; Haw k, P. C, B. 2, ch. 25, § 34 ;
4 Black. Comm. 305.
3 3 Black. Comm. 383.
656 CONSTITUTION OF THE U. STATES. [bOOK III.
rights ought to have been secured.^ These objections
found their way into the state conventions, and were
urged with great zeal against the constitution. They
did not, however, prevent the adoption of that instru-
ment. But they produced such a strong effect upon
the pubhc mind, that congress, immediately after their
first meeting, proposed certain amendments, embracing
all the suggestions, which appeared of most force ; and
these amendments were ratified by the several states,
and are now become a part of the constitution. They
are contained in the fifth and sixth articles of the
amendments, and are as follows :
" No person shall be held to answer for a capital or
" otherwise infamous crime, unless on a presentment
" or indictment oC a grand jury, except in cases arising
" in the land or naval forces, or in the militia, when in
" actual service, in time of war, or public danger : nor
" shall any person be subject, for the same offence, to be
" twice put in jeopardy of Hfe or limb ; nor shall be com-
"pelled, in any criminal case, to be a witness against
"himself; nor be deprived of life, liberty, or property,
" without due process of law ; nor shall private property
"be taken for public use, without just compensation."
" In all criminal prosecutions, the accused shall en-
"joy the right to a speedy and public trial, by an im-
" partial jury of the state and district, wherein the
"crime shall have been committed; which district
" shall have been previously ascertained by law ; and
" to be informed of the nature and cause of the accusa-
" tion ; to be confronted wdth the witnesses against
" him ; to have compulsory process for obtaining wit-
1 See 2 Elliot's Debates, 331, 380 to 427 ; I Elliot's Debates, 119, 120,
121, 122 ; 3 Elliot's Debates, 139, 140, 149, 153, 300.
CH. XXXVIIl.] JUDICIARY TRIAL RY JURY. 657
"nesses in his favour; and to have the assistance of
" counsel for his defence."
§ 1777. Upon the main provisions of these articles
a few remarks only will be made, since they are al-
most self-evident, and can require few illustrations to
establish their utility and importance.
^^ 1778. The first clause requires the interposition
of a grand jury, by way of presentment or indictment,
before the party accused can be required to answer to
any capital and infamous crime, charged against him.
And this is regularly true at the common law of all
offences, above the grade of common misdemeanors.
A grand jury, it is well known, are selected in the man-
ner prescribed by law, and duly sworn to make inquiry,
and present all offences committed against the author-
ity of the state government, within the body of the
county, for which they are impannelled. In ihe na-
tional courts, they are sworn to inquire, and present
all offences committed against the authority of the
nadonal government within the state or district, for
which they are impannelled, or elsewhere within the
jurisdiction of the national government. The grand
jury may consist of any number, not less than twelve,
nor more than twenty-three ; and twelve at least must
concur in every accusation.^ They sit in secret, and
examine the evidence laid before them by themselves.
A presentment, properly speaking, is an accusation
made ex mero motu by a grand jury of an offence up-
on their own observation and knowledge, or upon evi-
dence before them, and without any bill of indictment
laid before them at the suit of the government.
An indictment is a written accusation of an offence
1 4 Black. Comm. 302, 306.
VOL. III. 83
658 CONSTITUTION OF THE U. STATES. [bOOK III.
preferred to, and presented, upon oath, as true, by a
grand jury at the suit of the government. Upon a
presentment the proper olhcer of the court must frame
an indictment, before the party accused can be put to
answer it.^ But an indictment is usually in the first
instance framed by the officers of the government, and
laid before the grand jury. When the grand jury have
heard the evidence, if they are of opinion, that the in-
dictment is groundless, or not supported by evidence,
they used formerly to endorse on the back of the bill,
" ignoramus," or we know nothing of it, whence the bill
was said to be ignored. But now they assert in plain
Enghsh, " not a true bill," or which is a better way, " not
found;" and then the party is entitled to be discharg-
ed, if in custody, without farther answer. But a fresh
bill may be preferred against him by another grand
jury. If the grand jury are satisfied of the truth of
the accusation, then they write on the back of the bill,
" a true bill," (or anciendy, " billa vera.^^) The bill
is then said to be found, and is publicly returned into
court ; the party stands indicted, and may then be
required to answer the matters charged against him.^
§ 1779. From this summary statement it is obvious,
that the grand jury perform most important public
functions ; and are a great security to the citizens
against vindicdve prosecutions, either by the govern-
ment, or by political partisans, or by private enemies.
Nor is this all ;^ the indictment must charge the time,
and place, and nature, and circumstances, of the of-
fence, with clearness and certainty ; so that the party
1 4 Black. Comm. 301, 302.
2 4 Black. Comm. 305, 30G.
^ See 1 Tuck. Black. Comm. App. 304, 305 ; Rawle on Const, ch. 10,
p. 132.
CH. XXXVIIl.] JUDICIARY TRIAL BY JURY. 659
may have full notice of the charge, and be able to
make his defence with all reasonable knowledge and
ability.
§ 1780. There is another mode of prosecution,
which exists by the common law in regard to misde-
meanors ; though these also are ordinarily prosecuted
upon indictments found by a grand jury. The mode,
here spoken of, is by an information, usually at the suit
of the government or its oilicers. An information
generally differs in nothing from an indictment in its
form and substance, except that it is filed at the mere
discretion of the proper law officer of the government
ex officio, without the intervention or approval of a
grand jury.^ This process is rarely recurred to in
America ; and it has never yet been formally put into
operation by any posidve authority of congress, under
the national government, in mere cases of misdemean-
or; though common enough in civil prosecutions for
penalties and forfeitures.
^ 1781. Another clause declares, that no person
shall be subject, " for the same ofience, to be twice put
" in jeopardy of life and limb." This, again, is another
great privilege secured by the common law.^ The
meaning of it is, that a party shall not be tried a second
time for the same offence, after he has once been con-
victed, or acquitted of the offence charged, by the ver-
dict of a jury, and judgment has passed thereon for
or against him. But it does not mean, that he shall
not be tried for the offence a second time, if the jury
have been discharged without giving any verdict ; or,
if, having given a verdict, judgment has been arrested
upon it, or a new trial has been granted in his favour ;
1 4 Black. Comm. 308, 300.
2 Hawk. P. C, B. 2, cli. 35 ; 4 Black. Comm. 335.
660 CONSTITUTION OF THE U. STATES. [bOOK III.
for, in such a case, his hfe or limb cannot judicially be
said to have been put in jeopardy.^
§ 1782. The next clause prohibits any person from
being compelled, in any criminal case, to be a witness
against himself, or being deprived of life, liberty, or
property, without due process of law. This also is but
an affirmance of a common law privilege. But it is of
inestimable value. It is w^ell known, that in some
countries, not only are criminals compelled to give evi-
dence against themselves, but are subjected to the rack
or torture in order to procure a confession of guilt. And
what is worse, it has been (as if in mockery or scorn)
attempted to excuse, or justify it, upon the score of mer-
cy and humanity to the accused. It has been contrived,
(it is pretended,) that innocence should manifest itself
by a stout resistance, or guilt by a plain confession ;
as if a man's innocence were to be tried by the hard-
ness of his constitution, and his guilt by the sensibility
of his nerves.^ Cicero, many ages ago,^ though he
lived in a state, wherein it w as usual to put slaves to
the torture, in order to furnish evidence, has denounced
the absurdity and wickedness of the measure in terms
of glowing eloquence, as striking, as they are brief.
They are conceived in the spirit of Tacitus, and
breathe all his pregnant and indignant sarcasm.^
Ulpian, also, at a still later period in Roman jurispru-
dence, stamped the practice with severe reproof.^
1 See United States v. Haskell, 4 Wash. Cir. R. 402, 410 ; United
States V. Perez, 9 Wheat. R, 579 ; Hawk. P. C, B. 2, cli. 35, § 8 ;
1 Tuck. Black. Comm. App. 305 ; Ravvle on the Constitution, eh. 10,
p. 132, 133.
2 4 Black. Comm. 32G ; 3 Wilson's Law Lect. 154 to 159.
3 Cicero, Pro Sulla, 28.
^ Mr. Justice Blackstonc quotes them in 4 Black. Comm. 326; 1 Tuck.
Black. Comm. App. 304, 305 ; Rutherforth, Inst. B. 1, ch. 18, *§ 5.
5 See 3 Wilson's Law Lect. 158 ; 1 Gilb. Hist. 249.
CH. XXXVIII.] JUDICIARY TRIAL BY JURY. 661
§ 1783. The other part of the clause is but an en-
largement of the language of magna charta^ " nee super
sum ibimus, nee super cum mittimus, nisi per legale ju-
dicium parium suorum, vcl per legem terrce'' neither
will we pass upon him, or condemn him, but by the lawful
judgment of his peers, or by the law of the land. Lord
Coke says, that these latter words, per legem terrce (by
the law of the land,) mean by due process of law, that
is, without due presentment or indictment, and being
brought in to answer thereto by due process of the
common law.^ So that this clause in effect affirms the
right of trial according to the process and proceedings
of the common law.^
§ 1784. The concluding clause is, that private prop-
erty shall not be taken for public use without just com-
pensation. This is an affirmance of a great doctrine
established by the common law for the protection of
private property.^ It is founded in natural equity, and
is laid down by jurists as a principle of universal law.^
Indeed, in a free government, almost all other rights
would become utterly worthless, if the government pos-
sessed an uncontrollable power over the private fortune
of every cidzen. One of the fundamental objects of
every good government must be the due administradon
of justice; and how vain it would be to speak of such
an administration, when all property is subject to the
will or caprice of the legislature, and the rulers.^
1 2 Inst. 50, 51 ; 2 Kent's Coram. Lect. 24, p. 10, (2d edit. p. 13);
Cave's English Liberties, p. 19; 1 Tucker's Black. Coram. App. 304,
305.
2 Ibid.
3 1 Black. Coram. 138, 139.
4 2 Kent's Coram. Lect. 24, p. 275, 276, (2d. edit. p. 339, 340) ; 3 Wil-
son's Law Lect. 203 ; JVare v. Hylton, 3 Dull. R. 194, 235 ; S. C. 1 Pe-
ters's Cond. R. 99, 111 ; 1 Black. Coram. 138, 139, 140.
5 See 1 Tuck. Black. Coram. App. 305, 30(5 ; Rawje on Const, eh. 10,
p. 133. See also Van Home v. Dorrance, 2 Dall. 384.
662 COXSTITUTIO?^ OF THE U. STATES. [bOOK III.
^ 1785. The other article, in declaring, that the ac-
cused shall enjoy the right to a speedy and public trial
by an impartial jury of the state or district, wherein the
crime shall have been committed, (which district shall
be previously ascertained by law,) and to be informed
of the nature and cause of the accusation, and to be
confronted with the witnesses against him, does but
follow out the established course of the common law in
all trials for crimes. The trial is always public; the
witnesses are sworn, and give in their testimony (at
least in capital cases) in the presence of the accused ;
the nature and cause of the accusation is accurately
laid down in the indictment ; and the trial is at once
speedy, impartial, and in the district of the offence.^
Without in any measure impugning the propriety of
these provisions, it may be suggested, that there seems
to have been an undue solicitude to introduce into the
constitution some of the general guards and proceed-
ings of the common law in criminal trials, (truly admira-
ble in themselves) without sufficiently adverting to the
consideration, that unless the whole system is incor-
porated, and especially the law of evidence, a corrupt
legislature, or a debased and servile people, may ren-
der the whole little more, than a solemn pageantry. If,
on the other hand, the people are enlightened, and
honest, and zealous in defence of their rights and liber-
ties, it will be impossible to surprise them into a sur-
render of a single valuable appendage of the trial by
jury.'
§ 1786. The remaining clauses are of more direct
significance, and necessity. The accused is entitled to
1 See 4 Black. Comm. ch. 23 to ch. 23 ; Hawkins, P. C, B. 2, ch. 4G,
§ 1 ; 1 Tuck. Black. Comm. App. 304, 305.
2 See Rawle on Const, ch. 10, p. 128, 129.
CH. XXXVIII.] JUDICIAIIY TRIAL liY JURY. G63
have compulsory process for obtaining witnesses in his
favour, and to have the assistance of counsel. A very
short review of the state of the common law, on these
points, will put their propriety beyond quesdon. In the
first place, it was an anciently and commonly received
practice, derived from the civil law, and which Mr. Jus-
tice Blackstone says,^ in his day, still obtained in France,
though since the revolution it has been swept away, not
to suffer the party accused in capital cases to exculpate
himself by the testimony of any witnesses. Of this
practice the courts grew so heartily ashamed from its
unreasonable and oppressive character, that another
practice was gradually introduced, of examining wit-
nesses for the accused, but not upon oath ; the con-
sequence of which was, that the jury gave less credit
to this latter evidence, than to that produced by the gov-
ernment. Sir Edward Coke denounced the practice
as tyrannical and unjust ; and denied, that, in criminal
cases, the party accused was not to have witnesses
sworn for him. The house of commons, soon after the
accession of the house of Stuart to the throne of Eng-
land, insisted, in a particular bill then pending, and,
a2:ainst the efforts both of the crown and the house of
lords, caused a clause afhrming the right, in cases tried
under that act, of witnesses being sworn for, as well as
as^ainst, the accused. Bv the statute of 7 Will. 3, ch.
3, the same measure of justice was established through-
out the realm, in cases of treason ; and afterwards, in the
reign of Queen Anne, the hke rule was extended to all
cases of treason and felony.^ The right seems never
to have been doubted, or denied, in cases of mere mis-
1 4 Black. Coinrn. .'35 ' ; Rawle on Const, ch. 10, p. 128, 129.
2 4 Black. Comm. 359, 3G0 ; 3 Wilson's Law Lect. 170, 171 ; Hawk.
P. C. ch. 4G, § 160 ; 2 Hale P. C. 283.
664 CONSTITUTION OF THE U. STATES. [bOOK III.
demeanors.^ For what causes, and upon what grounds
this distinction was maintained, or even excused, it is
impossible to assign any satisfactory, or even plausible
reasoning.^ Surely, a man's life must be of infinitely
more value, than any subordinate punishment ; and if he
might protect himself against the latter by proofs of his
innocence, there would seem to be irresistible reasons
for permitting him to do the same in capital offences.^
The common suggestion has been, that in capital cases
no man could, or rather ought, to be convicted, unless
upon evidence so conclusive and satisfactory, as to be
above contradiction or doubt. But who can say,
whether it be in any case so high, until all the proofs in
favour, as well as against, the party have been heard ?
Witnesses for the government may swear falsely, and
directly to the matter in charge ; and, until opposing
testimony is heard, there may not be the slightest
ground to doubt its truth ; and yet, when such is heard,
it may be incontestible, that it is wholly unworthy of
belief. The real fact seems to be, that the practice was
early adopted into the criminal law in capital cases, in
which the crown was supposed to take a peculiar in-
terest, in base subserviency to the wishes of the latter.
It is a reproach to the criminal jurisprudence of Eng-
land, which the state trials, antecedently to the revolution
of 1688, but too strongly sustain. They are crimsoned
with the blood of persons, who were condemned to
death, not only against law, but against the clearest rules
of evidence.
1 Hawk. p. C. ch. 46, § 359; 2 Hale P. C. 283; 1 Tuck. Black.
Co mm. App. 305.
2 2HaleP. C. 263.
3 Rawle oa Const, ch. 10, p. 329, 130.
CH. XXXVIII.] JUDICIARY TRIAL BY JURY. 665
§ 1787. Another anomaly in the common law is,
that in capital cases the prisoner is not, upon his trial
upon the general issue, entitled to have counsel, unless
some matter of law shall arise, proper to be debated.
That is, in other words, that he shall not have the ben-
efit of the talents and assistance of counsel in examin-
ing the witnesses, or making his defence before the
jury. Mr. Justice Blackstone, with all his habitual
reverence for the institutions of English jurisprudence,
as they actually exist, speaks out upon this subject
v^rith the free spirit of a patriot and a jurist. This, he
says, is "a rule, which, however it may be palliated
under cover of that noble declaration of the law, when
rightly understood, that the judge shall be counsel for
the prisoner, that is, shall see, that the proceedings
against him are legal, and stricdy regular, seems to be
not all of a piece with the rest of the humane treatment
of prisoners by the English law. For upon what face
of reason can that assistance be denied to save the life
ot a man, which is yet allowed him in prosecutions for
every petty trespass." ^ The defect has indeed been
cured in England in cases of treason ; ^ but it still re-
mains unprovided for in all other cases, to, what one can
hardly help deeming, the discredit of the free genius of
the English constitution.
§ 1788. The wisdom of both of these provisions is,
therefore, manifest, since they make matter of consti-
tutional right, what the common law had left in a most
imperfect and questionable state.' The right to have
1 4 Black. Comm. 355.— -Mr. Christian in his note on the passage
has vindicat^^.d the importance of allowing counsel in a strain of manly
reasoning . 4 Black. Comm. 356, note 9.
2 4 B\ack.Comm. 356; 1 Tuck. Black. Comm. App. 305.
3 3 vvason's Law Lect. 170, 171 ; 1 Tuck. Black. Comm. App. 305 ;
Ravie on Const. ch.lO,p. 128, J 29.
VOL. III. ^4
666 CONSTITUTION OF THE U. STATES. [bOOK III.
witnesses sworn, and counsel employed for the prison-
er, are scarcely less important privileges, than the right
of a trial by jury. The omission of them in the con-
stitution is a matter of surprise ; and their present in-
corporation is matter of honest congratulation among all
the friends of rational liberty.
§ 1789. There yet remain one or two subjects con-
nected with the judiciary, which, however, grow out of
other amendments made to the constitution ; and will
naturally find their place in our review of that part of
these Commentaries, which embraces a review of the
remaining amendments.
CH. XXXIX.] DEFINITION OF TREASON. 667
CHAPTER XXXIX.
DEFINITION AND EVIDENCE OF TREASON.
§ 1790. The third section of the third article is as
follows : " Treason against the United States shall con-
"sist only in levying war against them, or in adhering
" to their enemies, giving them aid and comfort. No
"person shall be convicted of treason, unless on the
'' testimony of two witnesses to the same overt act,
" or on confession in open court."
§ 1791. Treason is generally deemed the highest
crime, which can be committed in civil society, since
its aim is an overthrow of the government, and a pub-
lic resistance by force of its powers. Its tendency
is to create universal danger and alarm ; and on this
account it is pecuharly odious, and often visited with
the deepest public resentment. Even a charge of
this nature, made against an individual, is deemed
so opprobrious, that, whether just or unjust, it sub-
jects him to suspicion and hatred ; and, in times of
high political excitement, acts of a very subordi-
nate nature are often, by popular prejudices, as well
as by royal resentment, magnified into this ruinous
importance.^ It is, therefore, of very great import-
ance, that its true nature and limits should be exactly
ascertained ; and Montesquieu was so sensible of it,
that he has not scrupled to declare, that if the crime
of treason be indeterminate, that alone is sufficient
to make any government degenerate into arbitrary
1 3 Wilson's Law Lect. ch. 5, p. 95, &c.
668 COIVSTITUTION OF THE U. STATES. [bOOK III.
power.^ The history of England itself is full of mel-
ancholy instruction on this subject. By the ancient
common law it was left very much to discretion
to determine, what acts were, and were not, treason ;
and the judges of those times, holding office at the
pleasure of the crown, became but too often instru-
ments in its hands of foul injustice. At the in-
stance of tyrannical princes they had abundant op-
portunities to create constructive treasons ; that is, by
forced and arbitrary constructions, to raise offences
into the guilt and punishment of treason, which were
not suspected to be such.^ The grievance of these
constructive treasons was so enormous, and so often
w^eighed down the innocent, and the patriotic, that
it w^as found necessary, as early as the reign of
Edward the Third,^ for parliament to interfere, and
arrest it, by declaring and defining all the different
branches of treason. This statute has ever since
remained the pole star of English jurisprudence upon
this subject. And although, upon temporary emer-
gencies, and in arbitrary reigns, since that period,
other treasons have been created, the sober sense of
the nation has generally abrogated them, or reduced
their power within narrow limits.^
§ 1792. Nor have repubhcs been exempt from
violence and tjTanny of a similar character. The
Federahst has justly remarked, that newfangled and
artificial treasons have been the great engines, by
1 Montcsq. Spirit of Laws, B. ]2, ch. 7 ; 4 Black. Comm. 75.
2 4 Black. Comm. 75 ; 3 Wilson's Law Lect. 9G ; ] Tucker's Black.
Comm. App. 27.5, 276.
3 Stat. 25, Edw. 8, ch. 2 ; 1 Hale, P. C. 2.59.
4 See 4 Black. Comm. 85 to 92 ; 3 Wilson's Law Lect. 96, 97, 98,
99 ; 1 Tuck. Black. Comm. App. 275.
CH. XXXIX.] DEFINITION OF TREASON. 669
which violent factions, the natural offspring of free
governments, have usually wreaked their alternate
malignity on each other.^
§ 1793. It was under the influence of these ad-
monitions furnished by history and human experience,
that the convention deemed it necessary to interpose
an impassable barrier against arbitrary constructions,
either by the courts, or by congress, upon the crime
of treason. It confines it to two species; first, the
levying of war against the United States ; and sec-
ondly, adhering to their enemies, giving them aid
and comfort.^ In so doing, they have adopted the
very words of the Statute of Treason of Edward the
Third ; and thus by implication, in order to cut off at
once all chances of arbitrary constructions, they have
recognized the well-settled interpretation of these
phrases in the administration of criminal law, which
has prevailed for ages,^
§ 1794. Fortunately, hitherto but few cases have
occurred in the United States, in which it has been
necessary for the courts of justice to act upon this
important subject. But whenever they have arisen,
the judges have uniformly adhered to the estabhshed
doctrines, even when executive influence has exerted
itself with no small zeal to procure convictions.^ On
one occasion only has the consideration of the ques-
tion come before the Supreme Court; and we shall
conclude what we have to say on this subject, with a
short extract from the opinion dehvered upon that
1 The Federalist, No. 43 ; 3 Wilson's Law Lect. 96.
2 See also Journ. of Convention, 221, 269, 270, 271.
3 See 4 Black. Comm. 81 to 84 ; Foster, Cr. Law, Discourse L
But see 4 Tuck. Black. Comm. App. Note B.
4 See 4 Jefferson's Corresp. 72, 75, 78, 83, 85, 86, 87, 88, 90, 101, 102,
103. See Burr's Trial in 1807 ; 3 Wilson's Law Lect. 100 to 106.
670 CONSTITUTION OF THE U. STATES. [BOOK III.
occasion. " To constitute that specific crime, for
which the prisoners, now before the court, have been
committed, war must be actually levied against the
United States. However flagitious may be the crime
of conspiring to subvert by force the government of
our country, such conspiracy is not treason. To
conspire to levy war, and actually to levy war, are
distinct ofl'ences. The first must be brought into
open action by the assemblage of men for a purpose
treasonable in itself, or the fact of levying war can-
not have been committed. So far has this principle
been carried, that, in a case reported by Ventris, and
mentioned in some modern treatises on criminal law,
it has been determined, that the actual enlistment of
men to serve against the government does not amount
to levying war. It is true, that in that case the sol-
diers enhsted were to serve without the realm ; but
they were enlisted within it, and if the enUstment
for a treasonable purpose could amount to levying
war, then war had been actually levied."
§ 1795. " It is not the intention of the court to say,
that no individual can be guilty of this crime, who has
not appeared in arms against his country. On the
contrary, if war be actually levied, that is, if a body
of men be actually assembled for the purpose of
effecting by force a treasonable purpose, all those,
who perform any part, however minute, or however
remote from the scene of action, and who are actu-
ally leagued in the general conspiracy, are to be con-
sidered as traitors. But there must be an actual
assembling of men for the treasonable purpose, to
constitute a levying of war.
J5 1
' Ex parte BoUman, 4 Crancli, 126. See also United States v. J5urr,
4 Cranch, 4(39 to 50S, &c. ; Serg. on Const, ch. 30, (2 edit. ch. 32 ;)
People V. L]/nch, 1 John. R. 553.
CH, XXXIX.] EVIDENCE OF TREASON. 671
§ 1796. The other part of the clause, requiring the
testimony of two witnesses to the same overt act, or
a confession in open court,^ to justify a conviction is
founded upon the same reasoning. A hke provision
exists in British jurisprudence, founded upon the
same great pohcy of protecting men against false
testimony, and unguarded confessions, to their utter
ruin. It has been well remarked, that confessions
are the weakest and most suspicious of all testimony ;
ever liable to be obtained by artifice, false hopes,
promises of favour, or menaces; seldom remem-
bered accurately, or reported with due precision ;
and incapable, in their nature, of being disproved by
other negative evidence.^ To which it may be add-
ed, that it is easy to be forged, and the most diffi-
cult to guard against. An unprincipled demagogue,
or a corrupt courtier, might otherwise hold the lives
of the purest patriots in his hands, without the means
of proving the falsity of the charge, if a secret confes-
sion, uncorroborated by other evidence, would fur-
nish a sufficient foundation and proof of guilt. And
wisely, also, has the consUtution decUned to suffer
the testimony of a single witness, however high, to
be sufficient to estabhsh such a crime, which rouses
against the victim at once private honour and pubhc
hostility.^ There must, as there should, be a con-
currence of two witnesses to the same overt, that is,
open act of treason, who are above all reasonable ex-
ception.'*
1 See United States v. Fries, Pamph. p. 171.
2 4 Black. Comm. 35G, 357.
3 See 4 Black. Comm. 357, 358.
4 United States v. Burr, 4 Cranch, 469, 496, 503, 506, 507.
672 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1797. The subject of the power of congress to
declare the punishment of treason, and the conse-
quent disabihties, have been already commented on in
another place. ^
1 See ante, Vol. III. § 1291tol29G.
CH. XL.] PRIVILEGES OF CITIZENS. 673
CHAPTER XL.
PRIVILEGES OF CITIZENS FUGITIVES SLAVES.
§ 1798. The fourth article of the constitution con-
tains several important provisions, some of which have
been already considered. Among these are, the faith
and credit to be given to state acts, records, and judg-
ments, and the mode of proving them, and the effect
thereof; the admission of new states into the Union ;
and the regulation and disposal of the territory, and
other property of the United States.^ We shall now
proceed to those, which still remain for examination.
§ 1 799. The first is, " The citizens of each state
" shall be entided to all privileges and immunities of
" citizens in the several states." There was an article
upon the same subject^ in the confederation, which
declared, " that the free inhabitants of each of these
states, paupers, vagabonds, and fugitives from justice
excepted, shall be entided to all privileges and immu-
nides of free citizens in the several states ; and the
people of each state shall, in every other, enjoy all the
privileges of trade and commerce, subject to the same
duties, impositions, and restrictions, as the inhabitants
thereof respectively," &c.^ It was remarked by the
Federalist, that there is a strange confusion in this
language. Why the terms, free inhabitants, are used
in one part of the article, /ree citizens in another, and
people in another ; or what is meant by superadding
1 See ante, Vol. III. § 1211 to 1230, § 1308 to 1315, and § 1316 to
1324.
2 See 1 Tucker's Black. Coram. App. 365.
3 Confederation, Art. 4.
VOL. III. 85
674 CONSTITUTION OF THE U. STATES. [bOOK III.
to " all privileges and immunities of free citizens,"
"all the privileges of trade and commerce," cannot
easily be determined. It seems to be a construction,
however, scarcely avoidable, that those, who come
under the denomination of free inhabitants of a state,
although not citizens of such state, are entitled, in every
other state, to all the privileges of free citizens of the
latter ; that is to greater privileges, than they may be
enlided to in their own state. So that it was in the
power of a particular state, (to which every other state
was bound to submit,) not only to confer the rights of
cidzenship in other states upon any persons, whom it
might admit to such rights within itself, but upon any
persons, whom it might allow to become inhabitants
within its jurisdiction. But even if an exposition could
be given to the term, inhabitants, which would confine
the stipulated privileges to citizens alone, the difficulty
would be diminished only, and not removed. The
very improper power was, under the confederadon,
still retained in each state of naturalizing aliens in
every other state.-^
^ 1800. The provision in the constitution avoids all
this ambiguity.^ It is plain and simple in its language ;
and its object is not easily to be mistaken. Connect-
ed with the exclusive power of naturaHzation in the
national government, it puts at rest many of the diffi-
culties, which affected the construction of the article of
the confederadon.^ It is obvious, that, if the cidzens of
each state were to be deemed aliens to each other, they
could not take, or hold real estate, or other privileges,
1 The Federalist, No. 42. See also Id. No. SO; ante, Vol. III.
§ 1098.
2 See Journ. of Convention, 222, 302.
a But see 1 Tuck. Black. Comm. App. 365.
CH. XL.] FUGITIVE CRIMINALS. 675
except as other aliens. The intention of this clause
was to confer on them, if one may so say, a general
citizenship ; and to communicate all the privileges and
immunities, which the citizens of the same state would
be entitled to under the like circumstances.^
^ 1801. The next clause is as follows: "A person
" charged in any state with treason, felony, or other
" crime, who shall flee from justice, and be found in
" another state, shall, on demand of the executive au-
" thority of the state, from which he fled, be delivered
" up, to be removed to the state having jurisdiction of
" the crime." A provision, substantially the same, ex-
isted under the confederation.^
§ 1802. It has been often made a question, how
far any nation is, by the law of nations, and independ-
ent of any treaty stipulations, bound to surrender upon
demand fugitives from justice, who, having committed
crimes in another country, have fled thither for shelter.
Mr. Chancellor Kent considers it clear upon principle,
as well as authority, that every state is bound to deny
an asylum to criminals, and, upon application and due
examination of the case, to surrender the fugitive to
the foreign state, where the crime has been committed.^
Other distinguished judges and jurists have entertain-
ed a different opinion.^ It is not uncommon for trea-
ties to contain mutual stipulations for the surrender of
i Carjield v. Coryell, 4 Wash. Cir. R. 371 ; Sergeant on Const, ch.
31, p. 384, (ch. 33, p. 393, 2 edit); Livingston v. Van Ingen, i) John.
R. 507.
2 Confederation, Art. 4.
3 1 Kent's Comm. Lect. 2, p. 36, (2 edit. p. 30, 37) ; Matter of Wash-
burn, 4 John. Ch. R. lOG ; Rex v. Ball, 1 Amer. Jurist, 297; Vattel,
B. 2, § 76, 77 ; Rutherforth, Inst. B. 2, ch. 9, § 12.
4 Com'th. V. Deacon, 10 Sergeant & Rawle, R. 125 : 1 American
Jurist. 297.
676 CONSTITUTION OF THE U. STATES. [bOOK III.
criminals ; and the United States have sometimes
been a party to such an arrangement.^
§ 1803. But, however the point may be, as to for-
eign nations, it cannot be questioned, that it is of vital
importance to the public administration of criminal jus-
tice, and the security of the respective states, that
criminals, who have committed crimes therein, should
not find an asylum in other states ; but should be sur-
rendered up for trial and punishment. It is a powder
most salutary in its general operation, by discouraging
crimes, and cutting off the chances of escape from pun-
ishment. It will promote harmony and good feelings
among the states ; and it wdll increase the general
sense of the blessings of the national government. It
will, moreover, give strength to a great moral duty,
which neighbouring states especially owe to each other,
by elevating the policy of the mutual suppression of
crimes into a legal obligation. Hitherto it has proved
as useful in practice, as it is unexceptionable in its char-
acter.^
^ 1804. The next clause is, "No person held to ser-
" vice or labor in one state under the laws thereof,
" escaping into another, shall in consequence of any law
"or regulation therein be discharged from such service
" or labour ; but shall be delivered up on the claim of
*' the party, to whom such service or labour may be
"due."^
^ 1805. This clause was introduced into the consti-
tution solely for the benefit of the slave-holding states,
1 See Treaty with Great Britain of 1794, art. 27 ; United States v.
JVas^ Bees, Adm. R. 2GG.
2 See 1 Kent's Comm. Lcct. 2, p. 36, (2 edit. p. 3G.) See Journ. of
Convention, 222, 304.
3 This clause in its substance was unanimously adopted by the Con-
vention. Journ. of Convention, 307.
CH. XL.] FUGITIVE SLAVES. 677
to enable them to reclaim their fugitive slaves, who
should have escaped into other states, where slavery was
not tolerated. The want of such a provision under the
confederation was felt, as a grievous inconvenience, by
the slave-holding states,^ since in many states no aid
whatsoever would be allowed to the owners ; and some-
times indeed they met with open resistance. In fact,
it cannot escape the attention of every intelligent read-
er, that many sacrifices of opinion and feeling are to be
found made by the Eastern and Middle states to the
peculiar interests of the south. This forms no just sub-
ject of complaint ; but it should for ever repress the de-
lusive and mischievous notion, that the south has not at
all times had its full share of benefits from the Union.
§ 1806. It is obvious, that these provisions for the
arrest and removal of fugitives of both classes contem-
plate summary ministerial proceedings, and not the
ordinary course of judicial investigations, to ascertain,
whether the complaint be well founded, or the claim of
ownership be established beyond all legal controversy.
In cases of suspected crimes the guilt or innocence of
the party is to be made out at his trial ; and not upon
the preliminary inquiry, whether he shall be delivered
up. All, that would seem in such cases to be necessary,
is, that there should he prima facie evidence before the
executive authority to satisfy its judgment, that there
is probable cause to believe the party guilty, such as
upon an ordinary warrant would justify his commit-
ment for trial.^ And in the cases of fugitive slaves
there would seem to be the same necessity of requir-
1 1 Tuck, Black. Comm. App. 366. See also Serg. on Const, eh. 31 p.
385, (ch. 33, p. 394 to 398, 2cl edit.) Glen v. Hodges, 9 John. R. 67 -,
Commonwealth v. Halloway, 2 Serg. & Rawle R. 306.
2 See Serg. on Const, ch. 31 o. 385, 2d edit. ch. 33, p. 394.)
678 CONSTITUTION OF THE U. STATES. [bOOK III.
ing only prima facie proofs of ownership, without put-
ting the party to a formal assertion of his rights by a
suit at the common law. Congress appear to have
acted upon this opinion ; and, accordingly, in the statute
upon this subject have authorized summary proceed-
ings before a magistrate, upon which he may grant a
warrant for a removal.^
1 Act of 12 Feb. 1793, ch. 51, (ch. 7) ; Serg. on Const, ch. 31, p. 387,
(2d edit. ch. 33, p. 397, 398) ; Glen v. Hodges, 9 John. R. 62 ; TFright v.
Deacon, 5 Serg. & R. 62; Commonwealth v. Griffin, 2 Pick. R. 11.
CH. XLI.] GUARANTY TO THE STATES. 679
CHAPTER XLI.
GUARANTY OF REPUBLICAN GOVERNMENT MODE
OF MAKING AMENDMENTS.
§ 1807. The fourth section of the fourth article is as
follows : " The United States shall guaranty to every
" state in this Union a republican form of government ;
" and shall protect each of them against invasion ; and
" on application of the legislature, or of the executive,
"when the legislature cannot be convened, against
" domestic violence."
§ 1808. The want of a provision of this nature was
felt, as a capital defect in the plan of the confederation,
as it might in its consequences endanger, if not over-
throw, the Union. Without a guaranty, the assistance
to be derived from the national government in repelling
domestic dangers, which might threaten the existence
of the state constitutions, could not be demanded, as a
right, from the national government. Usurpation might
raise its standard, and trample upon the liberties of the
people, while the national government could legally do
nothing more, than behold the encroachments with
indignation and regret. A successful faction might
erect a tyranny on the ruins of order and law ; while
no succour could be constitutionally afforded by the
Union to the friends and supporters of the govern-
ment.^ But this is not all. The destruction of the
national government itself, or of neighbouring states,
might result from a successful rebellion in a single state.
Who can determine, what would have been the issue, if
1 The Federalist, No. 21.
680 CONSTITUTION OF THE U. STATES. [BOOK III.
the insurrection in Massachusetts, in 1787, had been
successful, and the malecontents had been headed by
a Caesar or a Cromwell ? ^ If a despotic or monarchical
government were estabhshed in one state, it would
bring on the ruin of the whole republic. Montesquieu
has acutely remarked, that confederated governments
should be formed only between states, whose form of
government is not only similar, but also republican.^
§ 1809. The Federahst has spoken with so much
force and propriety upon this subject, that it super-
cedes all further reasoning.^ " In a confederacy," says
that work, " founded on repubhcan principles, and com-
posed of republican members, the superintending gov-
ernment ought clearly to possess authority to defend
the system against aristocratic or monarchical inno-
vations. The more intimate the nature of such a union
may be, the greater interest have the members in the
pohtical institutions of each other; and the greater
right to insist, that the forms of government, under
which the compact was entered into, should be sub-
stantially maintained.
§ 1810. "But a right imphes a remedy ; and where
else could the remedy be deposited, than where it is
deposited by the constitution 7 Governments of dis-
similar principles and forms have been found less
adapted to a federal coalition of any sort, than those of
a kindred nature. *As the confederate republic of
Germ.any,' says Montesquieu, ' consists of free cities
and petty states, subject to different princes, experi-
ence shows us, that it is more imperfect, than that of
1 The Federalist, No. 21.
2 Montesq. B. 9, ch. 1, 2 ; 1 Tuck. Black. Comm. App. 366, 367.—
This clause of guaranty was unanimously adopted in the convention.
Journ. of Convention, 113, 18J>.
3 The Federalist, No. 21.
CH. XLI.] OUAKAIVTY TO THE STATES. 681
Holland and Switzerland.' ' Greece was undone,' he
adds, ' as soon as die king of Macedon obtained a seat
among the Amphyctions.' In the latter case, no doubt,
the disproportionate force, as well as the monarchical
form of the new confederate, had its share of influence
on the events.
§ 1811. "It may possibly be asked, what need there
could be of such a precaution, and whether it may not
become a pretext for alteradons in the state govern-
ments, without the concurrence of the states themselves.
These questions admit of ready answers. If the inter-
position of the general government should not be need-
ed, the provision for such an event will be a harmless
superfluity only in the consdtudon. But who can say,
what experiments may be produced by the caprice of
pardcular states, by the ambidon of enterprising lead-
ers, or by the intrigues and influence of foreign powers?
To the second question, it may be answered, that if the
general government should interpose by virtue of this
constitutional authority, it will be of course bound to
pursue the authority. But the authority extends no
further than to a guaranlj/ of a republican form of gov-
ernment, which supposes a pre-existing government of
the form, which is to be guaranteed. As long there-
fore as the existing repubhcan forms are continued by
the states, they are guaranteed by the federal constitu-
tion. Whenever the states may choose to substitute
other republican forms, they have a right to do so, and
to claim the federal guaranty for the latter. The only
restricdon imposed on them is, that they shall not
exchange republican for and-republican constitutions :
a restriction, which, it is presumed, will hardly be con-
sidered as a grievance.
VOL. Ill 86
682 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1812. "A protection against invasion is due from
every society, to the parts composing it. The latitude
of the expression here used, seems to secure each state
not only against foreign hostility, but against ambitious
or vindictive enterprises of its more powerful neigh-
bours. The history both of ancient and modern con-
federacies proves, that the weaker members of the
union ought not to be insensible to the policy of this
article.
§ 1813. "Protection against domestic violence is
added with equal propriety. It has been remarked,
that even among the Swiss cantons, vvhich, properly
speaking, are not under one government, provision is
made for this object ; and the history of that league
informs us, that mutual aid is frequently claimed and
afibrded ; and as w^ell by the most democratic, as the
other cantons. A recent and well-known event among
ourselves has w^arned us to be prepared for emergen-
cies of a hke nature.
§ 1814. "At first view, it might seem not to square
with the republican theory, to suppose, either that a
majority have not the right, or that a minority will have
the force, to subvert a government ; and consequently,
that the federal interposition can never be required, but
when it would be improper. But theoretic reasoning
in this, as in most other cases, must be quahfied by the
lessons of practice. Why may not illicit combinations
for purposes of violence, be formed, as well by a major-
ity of a state, especially a small state, as by a majority
of a county, or a district of the same state ; and if the
authority of the state ought in the latter case to pro-
tect the local magistracy, ought not the federal authority
in the former to support the state authority 1 Besides ;
there are certain parts of the state constitutions, which
GH. XLI.] GUARANTY TO THE STATES. 683
are so interwoven with the federal constitution, that a
violent blow cannot be given to the one without com-
municating the wound to the other. Insurrections in a
state will rarely induce a federal interposition, unless
the number concerned in them bear some proportion
to the friends of government. It will be much better,
that the violence in such cases should be repressed by
the superintending power, than that the majority should
be left to maintain their cause by a bloody and obsti-
nate contest. The existence of a right to interpose
will generally prevent the necessity of exerting it.
§ 1815. "Is it true, that force and right are necessa-
rily on the same side in republican governments?
May not the minor party possess such a superiority of
pecuniary resources, of military talents and experience,
or of secret succours from foreign powers, as will ren-
der it superior also in an appeal to the sword 7 May
not a more compact and advantageous position turn
the scale on the same side, against a superior number
so situated, as to be less capable of a prompt and col-
lected exertion of its strength ? Nothing can be more
chimerical than to imagine, that, in a trial of actual force,
victory may be calculated by the rules, which prevail
in a census of the inhabitants, or which determine the
event of an election ! May it not happen, in fine, that
the minority of citizens may become a majority oi per-^
sons, by the accession of alien residents, of a casual
concourse of adventurers, or of those, whom the con-
stitution of the state has not admitted to the rights of
suffrage? I take no notice of an unhappy species of
population abounding in some of the states, who, dur-
ing the calm of regular government, are sunk below the
level of men ; but who, in the tempestuous scenes of
civil violence, may emerge into the human character,
684 CONSTITUTION OF THE U. STATES. [bOOK IM.
and give a superiority of strength to any party, with
which they may associate themselves.
§ 1816. "In cases where it may be doubtful, on
which side justice lies, what better umpires could be
desired by two violent factions, flying to arms and
tearing the state to pieces, than the representatives of
confederate states, not heated by the local flame 1 To
the impartiality of judges they would unite the aff'ec-
tion of friends. Happy would it be, if such a remedy
for its infirmides could be enjoyed by all free govern-
ments ; if a project equally effectual could be estab-
lished for the universal peace of mankind !
§ 1817. " Should it be asked, what is to be the
redress for an insurrection pervading all the states, and
comprising a superiority of the entire forc.e, though not
a constitutional right ? The answer must be, that such
a case, as it would be without the compass of human
remedies, so it is fortunately not within the compass of
human probability ; and that it is a sufficient recom-
mendation of the federal constitution, that it diminishes
the risk of a calamity, for which no possible constitution
can provide a cure.
§ 1818. "Among the advantages of a confederate
republic, enumerated by Montesquieu, aii important
one is, * that should a popular insurrection happen in
one of the states, the others are able to quell it.
Should abuses creep into one part, they are reformed
by those, that remain sound.' " ^
§ 1819. It may not be amiss further to observe, (in
the language of another commentator,) that every pre-
text for intermeddling with the domestic concerns of
any state, under colour of protecting it against domestic
1 The Federalist, No. 43.
CH. XLI.] MODE OF AMENDMKNTS. G85
violence, is taken away by that part of the provision,
which renders an apphcation from the legislature, or
executive authority of the state endangered necessary
to be made to the general government, before its inter-
ference can be at all proper. On the other hand, this
article becomes an immense acquisition of strength,
and additional force to the aid of any state govern-
ment, in case of an internal rebellion, or insurrection
against its authority. The southern states, being more
peculiarly open to danger from this quarter, ought (he
adds) to be particularly tenacious of a constitution, from
which they may derive such assistance in the most
critical periods.^
§ 1820. The fifth article of the constitution respects
the mode of making amendments to it. It is in these
words : " The congress, whenever two thirds of both
" houses shall deem it necessary, shall propose amend-
" ments to this constitution, or, on the application of
" the legislatures of two thirds of the several states,
"shall call a convention for proposing amendments,
" which, in either case, shall be vahd to all intents and
" purposes, as part of this constitution, when ratified
"by the legislatures of three fourths of the several
" states, or by conventions in three fourths thereof, as
" the one or the other mode of ratification may be pro-
" posed by the congress ; provided, that no amendment,
"which may be made prior to the year one thousand
" eight hundred and eight, shall in any manner affect
" the first and fourth clauses in the ninth section of
" the first article ; and that no state, without its con-
" sent, shall be deprived of its equal sufirage in the
"senate." ^
1 1 Tuck. Black. Comm. App. 367. Sec also Rawle on Const, ch. 32 ;
Q Elliot's Deb. 118, 119, 120; Journ. of Convention, p. 229, 311, 312.
2 See Journ. of Convent 1 13 ; Id. 229, 313, 347, 318, 300, 380, 387, 38S.
686 CONSTITUTION OF THE U, STATES. [nOOK III.
^ 1821. Upon this subject, little need be said to
persuade us, at once, of its utility and importance. It
is obvious, that no human government can ever be
perfect ; and that it is impossible to foresee, or guard
against all the exigencies, which may, in different ages,
require different adaptations and modifications of pow-
ers to suit the various necessities of the people. A
government, forever changing and changeable, is, in-
deed, in a state bordering upon anarchy and confusion.
A government, which, in its own organization, provides
no means of change, but assumes to be fixed and un-
alterable, must, after a while, become wholly unsuited
to the circumstances of the nation ; and it will either
degenerate into a despotism, or by the pressure of its
inequalities bring on a revolution. It is wise, there-
fore, in every government, and especially in a republic,
to provide means for altering, and improving the fabric
of government, as time and experience, or the new
phases of human affairs, may render proper, to promote
the happiness and safety of the people. The great
principle to be sought is to make the changes practi-
cable, but not too easy ; to secure due deliberation, and
caution ; and to follow experience, rather than to open
a way for experiments, suggested by mere speculation
or theory.
§ 1822. In regard to the constitution of the United
States, it is confessedly a new experiment in the his-
tory of nations. Its framers w^ere not bold or rash
enough to believe, or to pronounce it to be perfect.
They made use of the best lights, which they possess-
ed, to form and adjust its parts, and mould its mate-
rials. But they knew^, that time might develope many
defects in its arrangements, and many deficiencies in
its powers. They desired, that it might be open to
CH. XLI.] MODE OF AMENDMENTS. 687
improvement ; and under the guidance of the sober
judgment and enlightened skill of the country, to be
perpetually approaching nearer and nearer to perfec-
tion.^ It was obvious, too, that the means of amend-
ment might avert, or at least have a tendency to avert,
the most serious perils, to which confederated republics
are liable, and by which all have hitherto been ship-
wrecked. They knew, that the besetting sin of repub-
lics is a restlessness of temperament, and a spirit of
discontent at slight evils. They knew the pride and
jealousy of state povvcr in confederacies ; and they
wished to disarm them of their potency, by providing
a safe means to break the force, if not wholly to ward
off the blows, which would, from time to time, under
the garb of patriotism, or a love of the people, be aimed
at the constitution. They believed, that the power of
amendment was, if one may so say, the safety valve to
let off all temporary effervescences and excitements ;
and the real effective instrument to control and adjust
the movements of the machinery, when out of order,
or in danger of self-destrucdon.
^ 1823. Upon the propriety of the power, in some
form, there will probably be little controversy. The
only quesdon is, whether it is so arranged, as to accom-
plish its objects in the safest mode ; safest for the sta-
bility of the government ; and safest for the rights and
liberdes of the people.
^ 1824. Two modes are pointed out, the one at the
instance of the government itself, through the instru-
mentality of congress ; the other, at the instance of the
states, through the instrumentality of a convendon.
Congress, whenever two thirds of each house shall
1 The Federalist, No. 43.
688 CONSTITUTION OF THE U. STATES. [bOOK III.
concur in the expediency of an amendment, may pro-
pose it for adoption.^ The legislatures of two thirds
of the states may require a convention to be called, for
the purpose of proposing amendments. In each case,
three fourths of the states, either through their legisla-
tures, or conventions, called for the purpose, must
concur in every amendment, before it becomes a part
of the constitution. That this mode of obtaining
amendments is practicable, is abundantly demonstrated
by our past experience in the only mode hitherto found
necessary, that of amendments proposed by congress.
In this mode twelve amendments have already been
incorporated into the constitution. The guards, too,
against the too hasty exercise of the power, under
temporary discontents or excitements, are apparently
sufficient. Two thirds of congress, or of the legisla-
tures of the states, must concur in proposing, or requir-
ing amendments to be proposed ; and three fourths of
the states must ratify them. Time is thus allowed,
and ample time, for deliberation, both in proposing and
ratifying amendments. . They cannot be carried by
surprise, or intrigue, or artifice. Indeed, years may
elapse before a deliberate judgment may be passed
upon them, unless some pressing emergency calls for
instant action. An amendment, which has the delib-
erate judgment of two-thirds of congress, and of three
fourths of the states, can scarcely be deemed unsuited
to the prosperity, or security of the republic. It must
combine as much wisdom and experience in its favour,
as ordinarily can belong to the management of any
1 It has been Iiekl, that the approval of the prcsulcnt is not neces-
sary to any amendment proposed by congress. Hollingswjrtk v. Vir-
gtnia, 3 Ddil. '37S.
CH. XLI.] MODE OF AMENDMENTS. 689
human concerns.^ In England the supreme power of
the nation resides in parliament ; and, in a legal sense,
it is so omnipotent, that it has authority to change the
whole structure of the constitution, without resort to
any confirmation of the people. There is, indeed, litde
danger, that it w^ill so do, as long as the people are
fairly represented in it. But still it does, theoretically
speaking, possess the power ; and it has actually exer-
cised it so far, as to change the succession to the crown,
and mould to its will some portions of the internal
structure of the constitution.^
^ 1825. Upon the subject of the national constitu-
tion, we may adopt without hesitation the language of
a learned commentator. " Nor," says he, " can we
too much applaud a consdtution, which thus provides
a safe and peaceable remedy for its own defects, as
they may, from time to time, be discovered. A change
of government in other countries is almost always at-
tended with convulsions, which threaten its entire dis-
i The Federalist disposes of this article in the following brief, but
decisive, manner: "That useful alterations will be suggested by expe-
rience, could not but be foreseen. It was requisite, therefore, that a
mode for introducing them should be provided. The mode preferred
by the convention seems to be stamped with every mark of propriety.
It guards equally against that extreme facility, which would render the
constitution too mutable ; and that extreme difficulty, which might per-
petuate its discovered faults. It, moreover, equally enables the general,
and the state governments to originate the amendment of errors, as
they may be pointed out by the experience on one side, or the other.
The exception, in favour of the equality of suffrage in the senate, was
probably meant as a palladium to the residuary sovereignty of the states,
implied and secured by that principle of representation in one branch
of the legislature ; and was probably insisted on by the states particu-
larly attached to that equality. The otlier exception must have been
admitted on the same considerations, which produced the privilege
defended by it." The Federalist, No. 43.
2 See 1 Black. Comm. 90, 91, 14G, 147, 151, 152, JGO, IGl, 162, 210
to 218.
VOL. III. 87
690 CONSTITUTION OF THE U. STATES. [bOOK III.
solution ; and with scenes of horror, which deter
mankind from every attempt to correct abuses, or re-
move oppressions, until they have become altogether
intolerable. In America we. may reasonably hope, that
neither of these evils need be apprehended. Nor is
there any reason to fear, that this provision in the
constitution will produce any instability in the govern-
ment. The mode, both of originating and ratifying
amendments, (in either mode, which the constitution
directs,) must necessarily be attended with such obsta-
cles and delays, as must prove a sufficient bar against
hght or frequent innovations. And, as a further secu-
rity against them, the same article further provides,
that no amendment, which may be made prior to the
year 1808, vshall, in any manner affect those clauses of
the ninth section of the first article, which relate to the
migration or importation of such persons, as the states
may think proper to allow ; and to the manner, in
which direct taxes shall be laid ; and that no state
shall, without its consent, be deprived of its equal suf-
frage in the senate." ^
1 1 Tuck. Black. Comm. App. 371, 372.
CH. XLII.] PUBLIC DEBTS. 691
CHAPTER XLII.
PUBLIC DEBTS SUPREMACY OF CONSTITUTION
AND LAWS.
§ 1826. The first clause of the sixth article of the
constitution is : " All debts contracted, and engage-
" ments entered into before the adoption of this consti-
"tution, shall be as valid against the United States,
" under this constitution, as under the confederation." ^
§ 1827. This can be considered in no other light,
than as a declaratory proposition, resulting from the
law of nations, and the moral obligations of society.
Nothing is more clear upon reason or general law,
than the doctrine, that revolutions in government have,
or rather ought to have, no effect whatsoever upon
private rights, and contracts, or upon the public obli-
gations of nations.^ It results from the first principles
of moral duty, and responsibility, deducible from the
law of nature, and applied to the intercourse and social
relations of nations.^ A change in the poUtical form of
a society ought to have no power to produce a dissolu-
tion of any of its moral obligations.^
§ 1828. This declaration was probably inserted in
the constitution,, not only as a solemn recognition of
the obligations of the government resulting from na-
1 See Journ. of Convention, 291.
2 See Jackson v. Luun, 3 John. Gas. 109 ; Kelhj v. Harrison, 2 John.
Cas. 29 ; Terrett v. Taijlor, 9 Cranch, 50.
3 See Rutherfortli, Inst. B. 2, ch. 9, § 1, 2 ; Id. ch. 10, § 14 ; Vattel,
Prelim. Dis. § 2, 9 ; B. 2, cli. 1, § 1, ch. 5, § 64, ch. 14, § 214, 215, 216.
4 The Federalist, No. 43; Rutherforth, Inst. B. 2, ch. 10, s^ 14, 15;
Grotius,B. 2, ch.9, §8,9.
692 CONSTITUTION OF THE U. STATES. [bOOK III.
tional law ; but for the more complete satisfaction and
security of the public creditors, foreign as well as do-
mestic. The articles of confederation contained a
similar stipulation in respect to the bills of credit emit-
ted, monies borrowed, and debts contracted, by or un-
der the authority of congress, before the ratification of
the confederation.^
§ 1829. Reasonable as this provision seems to be,
it did not wholly escape the animadversions of that
critical spirit, which was perpetually on the search to
detect defects, and to disparage the merits of the con-
stitution. It was said, that the vaHdity of all engage-
ments made to, as well as made by, the United States,
ought to have been expressly asserted. It is surpris-
ing, that the authors of such an objection should have
overlooked the obvious consideration, that, as all en-
gagements are in their nature reciprocal, an assertion
of their validity on one side, necessarily involves their
validity on the other ; and that, as this article is but
declaratory, the estabhshment of it in debts entered
into by the government, unavoidably included a recog-
nition of it in engagements with the government.^
The shorter and plainer answer is that pronounced by
the law of nations, that states neither lose any of their
rights, nor are discharged from any of their obligations,
by a change in the form of their civil government.^
More was scarcely necessary, than to have declared^
that all future contracts by and with the United States
should be valid, and binding upon the parties.
1 1 Tuck. Black. Comm. App.SGS; Confederation, Art. 12.
2 The Federalist, No. 4-'^, No. 84.
3 The Federalist, No. 84 ; Rutherfbrth, J3. 2, ch. 10, § 14, 15 ; Grotius,
B.2, ch. 9, §8, 9.
CH. XLII.] SUPREMACY OF LAAVS. 693
§ 1830. The next clause is, "This constitution,
" and the laws of the United States, which shall be
" made in pursuance thereof, and all treaties made, or
" which shall be made, under the authority of the United
" States, shall be the supreme law of the land. And
" the judges in every state shall be bound thereby, any
"thing in the constitution or laws of any state to the
" contrary notwithstanding." ^
^ 1831. The propriety of this clause would seem to
result from the very nature of the constitution. If it
was to establish a national government, that govern-
ment ought, to the extent of its powers and rights, to be
supreme. It would be a perfect solecism to affirm, that
a national government should exist with certain powers ;
and yet, that in the exercise of those powers it should
not be supreme. What other inference could have
been draw^n, than of their supremacy, if the constitution
had been totally silent ? And surely a positive affirm-
ance of that, which is necessarily imphed, cannot in a
case of such vital importance be deemed unimportant.
The very circumstance, that a question might be made,
would irresistibly lead to the conclusion, that it ought
not to be left to inference. A law, by the very
meaning of the term, includes supremacy. It is a rule,
which those, to whom it is prescribed, are bound to
observe. This results from every political association.
If individuals enter into a state of society, the laws of
that society must be the supreme regulator of their
conduct. If a number of pohtical societies enter into a
larger political society, the laws, which the latter may
enact, pursuant to the powers entrusted to it by its
constitution, must necessarily be supreme over those
1 See Journal of Convention, p. 2'32, 282, 293.
694 CONSTITUTION OF THE U. STATES. [bOOK III.
societies, and the individuals, of whom they are com-
posed. It would otherwise be a mere treaty, depend-
ent upon the good faith of the parties, and not a gov-
ernment, which is only another name for poUtical power
and supremacy. But it will not follow, that acts of the
larger society, which are not pursuant to its constitu-
tional powers, but which are invasions of the residuary
authorities of the smaller societies, will become the
supreme law of the land. They will be merely acts of
usurpation, and will deserve to be treated as such.
Hence we perceive, that the above clause only de-
clares a truth, which flows immediately and necessarily
from the institution of a national government.^ It
will be observed, that the supremacy of the laws is
attached to those only, which are made in pursuance
of the constitution ; a caution very proper in itself, but
in fact the limitation would have arisen by irresistible
impUcation, if it had not been expressed.^
^ 1832. In regard to treaties, there is equal rea-
son, why they should be held, when made, to be the
supreme law of the land. It is to be considered, that
treaties constitute solemn compacts of binding obliga-
tion among nations ; and unless they are scrupulously
obeyed, and enforced, no foreign nation would consent
to negotiate with us ; or if it did, any want of strict
fidelity on our part in the discharge of the treaty stip-
ulations would be visited by reprisals, or war.^ It is,
therefore, indispensable, that they should have the obli-
1 The Federalist, No. 33. See Gibbons v. Ogden, 9 Wheat. R. 210,
211; McCullochy. Mainjland, 4 Wheat. R. 405, 406. — This passage
from the Federalist (No. 33) has been, for another purpose, already cited
in Vol. I. § 340 ; but it is necessary to be here repeated to give due
effect to the subsequent passages.
2 Ibid. See also 1 Tuck. Black. Comm. App. 369, 370.
3 See The Federalist, No. CA.
CH. XLII.] SUPREMACY OF LAWS. 695
gation and force of a law, that they may be executed
by the judicial power, and be obeyed like other laws.
This will not prevent them from being cancelled or
abrogated by the nation upon grave and suitable occa-
sions ; for it will not be disputed, that they are subject
to the legislative power, and may be repealed, like other
laws, at its pleasure ; ^ or they may be varied by new
treaties. Still, while they do subsist, they ought to
have a positive binding efficacy as laws upon all the
states, and all the cidzens of the states. The peace of
the nation, and its good faith, and moral dignity, indis-
pensably require, that all state laws should be subject-
ed to their supremacy. The difference between
considering them as laws, and considering them as
executory, or executed contracts, is exceedingly impor-
tant in the actual administration of public justice. If
they are supreme laws, courts of justice will enforce
them directly in all cases, to which they can be judi-
cially applied, in opposition to all state laws, as we all
know was done in the case of the British debts secured
by the treaty of 1783, after the constitution was adopt-
ed.^ If they are deemed but solemn compacts, prom-
issory in their nature and obligation, courts of justice
may be embarrassed in enforcing them, and may be
compelled to leave the redress to be administered
through other departments of the government.^ It is
1 See Act of Congress, 7th July, 1798, ch. 84 ; Talbot v. Seeman,
1 Cranch, 1 ; fVare v. Hijlton, 3 Dall. 361, Per Iredell J.
2 Ware v. Hylton, 3 Dall. R. 199. See also Gibbons v. Ogden,
9 Wheat. R. 21 0,211 ; Letter of Congress of 13th April, 1787; 12 Journ.
of Congress, 32.
3 See Iredell J.'s reasoning in JVare v. Hylton, 3 Dall. R. 270 to 277 ;
5 Marshall's Life of Washington, ch. 8, p. 652, 656 ; 1 Wait's State Pa-
pers, 45, 47, 71, 81, 145 ; Serg. on Const, ch. 21, p. 217, 218, ch. 33,
p. 39G, 397, (2d edit. ch. 21, p. 218, 219, ch. 34, p. 40G, 407.) — « A
696 CONSTITUTION OF THE U. STATES. [bOOK III.
notorious, that treaty stipulations (especially those of
the treaty of peace of 1783) were grossly disregarded
by the states under the confederation. They were
deemed by the states, not as laws, but like requisitions,
of mere moral obligation, and dependent upon the good
will of the states for their execution. Congress, indeed,
remonstrated against this construction, as unfounded in
principle and justice.^ But their voice was not heard.
Power and right were separated ; the argument was
all on one side ; but the power was on the other.^ It
was probably to obviate this very difficulty, that this
clause was inserted in the constitution ; ^ and it would
redound to the immortal honour of its authors, if it had
done no more, than thus to bring treaties within the
sanctuary of justice, as laws of supreme obligation.^
There are, indeed, still cases, in which courts of justice
can administer no effectual redress : as when the terms
treaty," said the Supreme Court, in Foster v. JVeilson, 2 Peters's R.
314, " is in its nature a contract ))et\veen two nations, not a legislative
act. It does not generally effect of itself the object to be accomplished,
especially so far, as its operation is infraterritorial ; but is carried into
execution by the sovereign power of the respective parties to the in-
strument. In the United States a different principle is established.
Our constitution declares a treaty to be the law of the land. It is con-
sequently to be regarded by courts of justice as equivalent to an act of
the legislature, whenever it operates of itself without the aid of any
legislative provision."
1 Circular Letter of Congress, 13th April, 1787 ; 12 Journ. of Con-
gress, 32 to 30.
2 See the opinion of Iredell J. in JVare v. Hylton, 3 Dall. 270 to 277.
3 Id. 27G, 277. See Journal of Convention, p. 222, 282, 283, 293.
4 The importance of this power has been practically illustrated by the
redress afforded by courts of law in cases pending before them upon
treaty stipulations. See Uiiited States v. The Peggy, 1 Cranch, 103;
Ware v. Hylton, 3 Dall. R. 199, 244, 261 ; United States v. Arradondo,
G Peters's R. G91 ; Soulard v. Smith, 4 Peters's Sup. R. 511 ; Case of
Jonathan Robhins, 1 Hall's Journ. of Jurisp. 25 ; Bees Adm'rs Rep. 263 ;
5 Wheat. Rep. App.
CH. xlil] supremacy of laws. 697
of a stipulation import a contract, when either of the
parties engages to perform a particular act the treaty
addresses itself to the political, and not to the judicial,
department ; and the legislature must execute the con-
tract, before it can become a rule for the courts.^
^ 1833. It is melancholy to reflect, that, conclusive as
this view of the subject is in favour of the supremacy
clause, it was assailed v/ith great vehemence and zeal
by the adversaries of the constitution ; and especially
the concluding clause, which declared the supremacy,
"any thing in the constitution or laws of any state to
" the contrary notwithstanding." ^ And yet this very
clause was but an expression of the necessary meaning
of the former clause, introduced from abundant caution,
to make its obligation more strongly felt by the state
judges. The very circumstance, that any objection
was made, demonstrated the utility, nay the necessity
of the clause, since it removed every pretence, under
which ingenuity could, by its miserable subterfuges,
escape from the controlling power of the constitution.
§ 1834. To be fully sensible of the value of the
whole clause, we need only suppose for a moment,
that the supremacy of the state constitutions had been
left complete by a saving clause in their favour. " In
the first place, as these constitutions invest the state
legislatures with absolute sovereignty, in all cases not
excepted by the existing articles of confederation, all
the authorities contained in the proposed constitution,
so far as they exceed those enumerated in the con-
federation, would have been annulled, and the new
1 Foster v. jYeilson, 2 Peters's Sup. R. 254, 314. See also the Bello
Corunnes, 6 Wheat. R. 171 ; Sera, on Const, ch. 33, p. 397, 398, 399,
(ch. 34, p. 407, 408, 409, 410, 2d edit.)
2 See The Federalist, No- 4*4, 64.
VOL. III. 88
698 CONSTITUTION OF THE U. STATES. [bOOK III.
coBgress would have been reduced to the same im-
potent condition with their predecessors. In the
next place, as the constitutions of some of the states
do not even expressly and fully recognize the exist-
ing powers of the confederacy, an express saving of
the supremacy of the former would, in such states,
have brought into question every power contained in
the proposed constitution. In the third place, as the
constitutions of the states differ much from each other,
it might happen, that a treaty or national law, of great
and equal importance to the states, would interfere
with some, and not with other constitutions, and
would consequently be valid in some of the states, at
the same time, that it would have no effect in others.
In fine, the world would have seen, for the first time,
a system of government founded on an inversion of
the fundamental principles of all government; it
would have seen the authority of the whole society
everywhere subordinate to the authority of the parts ;
it would have seen a monster, in which the head was
under the direction of the members."^
§ 1835. At an early period of the government a
question arose, how far a treaty could embrace com-
mercial regulations, so as to be obligatory upon the
nation, and upon congress. It was debated with
great zeal and ability in the house of representatives.^
On the one hand it was contended, that a treaty
might be made respecting commerce, as w^ell as upon
any other subject ; tliat it was a contract between
the two nations, which, when made by the president,
by and with the consent of thq senate, was binding
1 The Federalist, No- 44.
2 The question arose in the debate for carrying into effect the British
Treaty ofl 794.
CH. XLII.] SUPREMACY OF LAWS. 699
upon the nation ; and that a refusal of the liouse of
representatives to carry it into cirect was breaking
the treaty, and violating the faith of the nation. On
the other hand, it was contended, that the power to
make treaties, if applicable to every object, conflicted
with powers, which were vested exclusively in con-
gress ; that either the treaty making power must be
limited in its operation, so as not to touch objects
committed by the constitution to congress ; or the
assent and co-operation of the house of re[)resenta-
tives must be required to give validity to any com-
pact, so far as it might comprehend these objects :
that congress was invested with the exclusive power
to regulate commerce ; that therefore, a treaty of
commerce required the assent and co-operation of
the house of representatives ; that in every case,
where a treaty required an appropriation of money, or
an act of congress to carry it into effect, it was not in
this respect obligatory, till congress had agreed to
carry it into effect ; and, that they were at free hberty
to make, or withhold such appropriation, or act, without
being chargeable with violating the treaty, or breaking
the faith of the nation. In the result, the house of
representatives adopted a resolution declaring, that
the house of representatives do not claim any agency
in making treaties ; but when a treaty stipulates regu-
lations on any of the subjects submitted to the pow-
er of congress, it must depend for its execution, as to
such stipulations, on a law or laws to be passed by con-
gress ; and that it is the constitutional right and duty
of the house of representatives, in all such cases, to
deliberate on the expediency or inexpediency of car-
rying such treaty into effect, and to determine and
act thereon, as in their judgment may be most condu-
700 CONSTITUTION OF THE U. STATES. [bOOK III.
cive to the public good. It is well known, that the
president and the senate, on that occasion, adopted a
different doctrine, maintaining, that a treaty once rati-
fied became the law of the land, and congress were
constitutionally bound to carry it into effect.^ At the
distance of twenty years, the same question was again
presented for the consideration of both houses, upon
a bill to carry into effect a clause in the treaty of
1815 with Great Britain, abolishing discriminating
duties ; and, upon that occasion, it was most ably
debated. The result was, that a declaratory clause
w^as adopted, instead of a mere enacting clause, so
1 See Journal of House of Representatives, 6th April, 1796 ; 5 Mar-
shall's Life of Washington, ch 8, p. 650 to 659 ; Serg. on Const, ch. 33,
p. 401, (2d edit. ch. 34, p. 410,411); 1 Debates on British Treaty,
by F. Bache, 1796, p. 374 to 386 ; 4 Elliot's Deb. 244 to 248. — Presi-
dent Washington, on this occasion, refused to deliver the papers respect-
ing the British Treaty of 1794, called for by the house of representatives ;
and asserted the obligatory force of the treaty upon congress in the
most emphatic terms. He added, that he knew, that this was under-
stood in the convention to be the intended interpretation, and he refer-
red to the Journal of the Convention '^ to show, that a proposition was
made, " that no treaty should be binding on the United States, which
was not ratified by a law ; " and that it was explicitly rejected. (5 Mar-
shall's Life of Washington, ch. 8, p. 654 to 658.) At a much earlier
period, viz- in 1790, the same point came before the cabinet of President
Washington in a treaty proposed with the Creek Indians. Upon that
occasion, there seems to have been no doubt in the minds of any of his
cabinet of the conclusiveness of a treaty containing commercial stipula-
tions. Mr. Jefferson, on that occasion, firmly maintained it. A treaty,
(said he,) made by the president with the concurrence of two thirds of
the senate is the law of the land, and a law of a superior order, be-
cause it not only repeals past laws, but cannot itself be repealed by future
ones. The treaty then will legally control the duty act, and the act for
securing traders in this particular instance. Yet Mr. Jeflferson after-
wards, (in Nov. 1793,) seems to have fluctuated in opinion, and to have
been unsettled, as to the nature and extent of the treaty-making power.
4 Jefferson's Corresp. 497, 498.
* Hcb Journal of Convention, p. 2P4, 325, 31}6, 339, 342, 343.
CH. XLII.] SUPREMACY OF LAWS. 701
that the bindhig obligation of treaties was affirmatively
settled.^
§ 1836. From this supremacy of the constitution
and laws and treaties of the United States, within
their constitutional scope, arises the duty of courts of
justice to declare any unconstitutional law passed by
congress or by a state legislature void. So, in like
manner, the same duty arises, whenever any other
department of the national or state governments ex-
ceeds its constitutional functions.^ But the judiciary
of the United States has no general jurisdiction to
declare acts of the several states void, unless they
are repugnant to the constitution of the United States,
notwithstanding they are repugnant to the state con-
stitution.^ Such a power belongs to it only, when it
sits to administer the local law^ of a state, and acts
exactly, as a state tribunal is bound to act.^ But
upon this subject it seems unnecessary to dwell, since
the right of all courts, state as well as national, to
declare unconstitutional laws void, seems settled be-
yond the reach of judicial controversy.^
1 Serg. on Const, ch. 33, p. 402, (2d edit. ch. 34, p. 411; 2 Elliot's
Deb. 273 to 279. — Upon this occasion, a most admirable speech was de-
livered by the late William Pinkney, in which his great powers of rea-
soning and juridical learning had an ample scope. See Wheaton's Life
of Pinkney, p. 517.
2 Marhuryv. Madison, 1 Cranch, 137, 176.
3 Calder v. Ball, 3 DalL R.380 ; S. C. 1 Peters's Cond. R. 172, 177.
4 Satterlce v. Mattheivson, 2 Peters's Sup. R. 380, 413.
5 See Serg. on Const, ch. 33, p. 391, (2d edit. ch. 34, p. 401) ; 1 Kent's
Comm. Lect. 20, p. 420, 421, (2d edit. p. 448, 449, 450.)
702 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XLIII.
OATHS OF OFFICE RELIGIOUS TEST RATIFICA-
TION OF CONSTITUTION.
§ 1837. The next clause is, " The senators and
"representatives before mentioned, and the members
" of the several state legislatures and all executive
" and judicial officers, both of the United States and
" of the several states, shall be bound by oath or
"affirmation to support the constitution.^ But no
" reUgious test shall ever be required as a qualifica-
" tion to any office or public trust under the United
"States."
§ 1838. That all those, who are entrusted with the
execution of the powers of the national government,
should be bound by some solemn obligation to the
due execution of the trusts reposed in them, and to
support the constitution, would seem to be a proposi-
tion too clear to render any reasoning necessary in
support of it. It results from the plain right of society
to require some guaranty from every officer, that he will
be conscientious in the discharge of his duty. Oaths
have a solemn obligation upon the minds of all re-
flecting men, and especially upon those, who feel a
deep sense of accountability to a Supreme being. If,
in the ordinary administration of justice in cases of
1 This clause, requiring an oath of the state and national functiona-
ries to support the constitution, was at first carried by a vote of six states
against five ; but it was afterwards unanimously approved. Journ. of
Convention, p. 114, 197. On tiie final vote, it was adopted by a vote of
eight states against one, two being divided. Id. 313. The clause re-
specting a religious test was unanimously adopted. Id. 313.
CH. XLIII.] OATH OF OFFICE. 703
private rights, or personal claims, oaths are required of
those, who try, as well as of those, who give testimony,
to guard against malice, falsehood, and evasion, surely
like guards ought to be interposed in the administra-
tion of high public trusts, and especially in such, as
may concern the welfare and safety of the whole com-
munity. But there are known denominations of men,
who are conscientiously scrupulous of taking oaths
(among which is that pure and distinguished sect of
Christians, commonly called Friends, or Quakers,)
and therefore, to prevent any unjustifiable exclusion
from office, the constitution has permitted a solemn
affirmation to be made instead of an oath, and as its
equivalent.
§ 1839. But it may not appear to all persons quite
so clear, why the officers of the state governments
should be equally bound to take a like oath, or affir-
mation ; and it has been even suggested, that there
is no more reason to require that, than to require,
that all of the United States officers should take an
oath or affirmation to support the state constitutions.
A moment's reflection will show sufficient reasons for
the requisition of it in the one case, and the omission
of it in the other. The members and officers of the
national government have no agency in carrying into
eff'ect the state constitutions. The members and
officers of the state governments have an essential
agency in giving effect to the national consdtution.
The election of the president and the senate will de-
pend, in all cases, upon the legislatures of the several
states ; and, in many cases, the election of the house
of representatives may be affected by their agency.
The judges of the state courts will frequently be called
upon to decide upon the constitution, and laws, and
704 CONSTITUTION OF THE U. STATES. [bOOK III.
treaties of the United States ; and upon rights and claims
growing out of them. Decisions ought to be, as far as
possible, uniform ; and uniformity of obligation will
greatly tend to such a result. The executive authority
of the several states may be often called upon to exert
powers, or allow rights, given by the constitudon, as
in filling vacancies in the senate, during the recess of
the legislature ; in issuing wi^its of election to fill vacan-
cies in the house of representatives ; in ofiicering the
militia, and. giving eff'ect to laws for calling them ; and
in the surrender of fugitives from justice. These, and
many other functions, devolving on the state authorities,
render it highly important, that they should be under
a solemn obligation to obey the constitution. In com-
mon sense, there can be no well-founded objection to
it. There may be serious evils growing out of an
opposite course.^ One of the objections, taken to
the articles of confederation, by an enlightened state,
(New-Jersey,) was, that no oath was required of mem-
bers of congress, previous to their admission to their
seats in congress. The laws and usages of all civilized
nations, (said that state,) evince the propriety of an
oath on such occasions ; and the more solemn and
important the deposit, the more strong and explicit ought
the obligation to be.^
§ 1840. As soon as the constitution went into
operation, congress passed an act,^ prescribing the
time and manner of taking the oath, or aflfirmation,
thus required, as well by officers of the several states,
as of the United States. On that occason, some
A The Federalist, No. 44; 1 Tuck. Black. Cornm. App. 370,371 ;
Ravvle on Constitution, ch. 19, p. 191, 192.
2 2 Pitk. Hist. 22 ; 1 Secret Journ. of Congress, June 25, 1778, p. 374.
3 Act of 1st June, 1789, ch. 1.
CH. XLTII.] . ' RELIGIOUS TEST. 705
scruple seems to have been entertained, by a few
members, of the constitutional authority of congress
to pass such an act.^ But it was approved without
much opposition. At this day, the point would be
generally deemed beyond the reach of any reasona-
ble doubt.2
§ 1841. The remaining part of the clause declares,
that " no religious test shall ever be rec^uired, as a
" qualification to any office or pubUc trust, under the
" United States." This clause is not introduced
merely for the purpose of satisfying the scruples of
many respectable persons, who feel an invincible re-
pugnance to any religious test, or alfirmation. It had
a higher object ; to cut off for ever every pretence of
any alUance between church and state in the national
o;overnment. The framers of the constitution were
fully sensible of the dangers from this source, marked
out in the history of other ages and countries ; and
not wholly unknown to our own. They knew, that
bigotry was unceasingly vigilant in its stratagems, to
secure to itself an exclusive ascendancy over the
human mind ; and that intolerance was ever ready
to arm itself with all the terrors of the civil power to
exterminate those, who doubted its dogmas, or resist-
ed its infallibility. The Catholic and the Protestant
had alternately waged the most ferocious and unre-
lenting warfare on each other ; and Protestantism
itself, at the very moment, that it was proclaiming
the right of private judgment, prescribed boundaries
to that right, beyond which if any one dared to pass,
he must seal his rashness with the blood of martyr-
1 Lloyd's Debates, 218 to 225; 4 Elliot's Debates, 139 to 141.
2 See also MCulloh v. Maryland, 4 Wheat. R. 415, 41G.
VOL. III. 89
706 CONSTITUTION OF THE U. STATES. [bOOK III.
dom.^ The history of the parent, country, too, could
not fail to instruct them in the uses, and the abuses
of religious tests. They there found the pains and
penalties of non-conformity written in no equivocal
language, and enforced with a stern and vindictive
jealousy. One hardly knows, how to repress the
sentiments of strong indignation, in reading the cool
vindication of the law^s of England on this subject,
(now, happily, for the most part abohshed by recent
enactments,) by Mr. Justice Blackstone, a man, in
many respects distinguished for habitual moderation,
and a deep sense of jusdce. " The second species,"
says he " of non-conformists, are those, who offend
through a mistaken or perverse zeal. Such were
esteemed by our laws, enacted since the time of the
reformation, to be papists, and protestant dissenters ;
both of which were supposed to be equally schis-
matics in not communicating with the national church ;
with this difference, that the papists divided from it
upon material, though erroneous, reasons ; but many
of the dissenters, upon matters of indifference, or, in
other words, upon no reason at all. Yet certainly
our ancestors wei'e mistaken in their plans of com-
pulsion and intolerance. The sin of schism, as such,
is by no means the object of temporal coercion and
punishment. If, through weakness of intellect,
through misdirected piety, through perverseness and
acerbity of temper, or, (which is often the case,)
through a prospect of secular advantage in herding
with a party, men quarrel with the ecclesiastical
establishment, the civil magistrate has nothing to do
with it ; unless their tenets and practice arc such, as
1 Sue 4 Black. Comm. 44, 53, and ante, Vol. I, ^n 53.
CH. XLIII.] ^ KELIGIOUS TEST. 707
threaten ruin or disturbance to the state. Tic is
bound, indeed, to protect the estabHshed churcli ;
and, if this can be better effected, by admitting none
but its genuine members to ollices of \n\<t and emol-
ument, he is certainly at hberty so to do ; the dis-
posal of offices being matter of favour and discretion.
But, this point being once secured, all persecution
for diversity of opinions, however ridiculous or ab-
surd they may be, is contrary to every principle of
sound policy and civil freedom. The names and
subordination of the clergy, the posture of devotion,
the materials and colour of the minister's garment,
the joining in a known, or an unknown form of prayer,
and other matters of the same kind, must be left to
the option of every man's private judgment."^
^ 1842. And again : " As to papists, what has
been said of the protestant dissenters would hold
equally strong for a general toleration of them ; pro-
vided their separation was founded only upon differ-
ence of opinion in religion, and their principles did
not also extend to a subversion o^ the civil gov-
ernment. If once they could be brought to renounce
the supremacy of the pope, they might quietly enjoy
their seven sacraments, their purgatory, and auricular
confession ; their worship of reliques and images ;
nay even their transubstantiation. But while they
acknowledge a foreign power, superior to the sove-
reignty of the kingdom, they cannot complain, if the
laws of that kingdom will not treat them upon the
footing of good subjects." ^
§ 1843. Of the English laws respecting papists,
Montesquieu observes, that they are so rigorous,
1 4 Black. Comm. 52, 53. - 4 Black. Comm. Si, 55.
708 COI^STITUTION OF THE U. STATES. [bOOK III.
though not professedly of the sanguinary kind, that
they do all the hurt, that can possibly be done in
cold blood. To this just rebuke, (after citing it, and
admitting its truth,) Mr. Justice Blackstone has no
better reply to make, than that these laws are sel-
dom exerted to their utmost rigour ; and, indeed, if
they were, it would be very difficult to excuse
them.^ The meanest apologist of the worst enormi-
ties of a Roman emperor could not have shadowed
out a defence more servile, or more unworthy of the
dignity and spirit of a freeman. With one quotation
more from the same authority, exemplifying the na-
ture and objects of the English test laws, this subject
may be dismissed. " In order the better to secure
the established church against perils from non-
conformists of all denominations, infidels, Turks, Jews,
heretics, papists, and sectaries, there are, however,
two bulwarks erected, called the corporation and test-
acts. By the former of which, no person can be
legally elected to any office relating to the gov-
ernment of any city or corporation, unless, within
a twelvemonth before, he has received the sacra-
ment of the Lord's supper according to the rights
of the church of England ; and he is also enjoin-
ed to take the oaths of allegiance and supremacy,
at the same time, that he takes the oath of office ;
or, in default of either of these requisites, such elec-
tion shall be void. The other, called the test-act,
directs all officers, civil and military, to take the
oaths, and make the declaration against transubstan-
tiation, in any of the king's courts at Westminster, or
at the quarter sessions, within six calendar months
1 4 Black. Comm. 57.
CH. XLIII.] RATIFICATION OF CONSTITUTION. 709
after their admission ; and also within the same time
to receive the sacrament of the Lord's supper, accord-
ing to the usage of the church of England, in som'e
pubhc church immediately after divine service and
sermon ; and to deliver into court a certificate thereof
signed by the minister and church-warden, and also
to prove the same by two credible witnesses, upon
forfeiture of 500/, and disability to hold the said of-
fice. And of much the same nature with these is
the statute 7 Jac. I. c. 2., which permits no persons
to be naturalized, or restored in blood, but such as
undergo a like test ; which test, having been removed
in 1753, in favour of the Jews, was the next session
of parliament restored again with some precipit-
ation." ^ It is easy to foresee, that without some pro-
hibition of religious tests, a successful sect, in our
country, might, by once possessing power, pass test-
laws, which w^ould secure to themselves a monop-
oly of all the offices of trust and profit, under the
national government.^
§ 1844. The seventh and last article of the con-
stitution is : " The ratification of the conventions of
" nine states shall be sufficient for the establish-
" ment of this constitution between the states so ratify-
" ing the same."
§ 1845. Upon this article it is now^ wholly un-
necessary to bestow much commentary, since the
constitution has been ratified by all the states. If a
ratification had been required of all the states, instead
of nine, as a condition precedent, to give it life and
motion, it is now known, that it would never have
1 See also 2 Kent's Comm. Lect. 24, (2 edit.) p. 35, 36 ; Rawle on the
Constitution, ch. 10, p. 121 ; 1 Tuck. Black. Comm. App. 296 ; 2 Tuck.
Black. Comm. App. Note (G.),p. 3.
2 See ante, Vol. II, § 621.
710 CONSTITUTION OF THE U. STATES. [bOOK III.
been ratified. North Carolina in her first conven-
tion rejected ir ; and Rhode-Island did not accede
to it, until more than a year after it had been in oper-
ation.^ Some delicate questions, under a different
state of things, might have arisen. What they were,
and how they were disposed of at the time, is made
known by the Federalist, in a commentary upon the
article, which will conclude this subject.
§ 1846. "This article speaks for itself. The ex-
press authority of the people alone could give due
validity to the constitution. To have required the
unanimous ratification of the thirteen states, would
have subjected the essential interests of the whole,
to the caprice or corruption of a single member. It
would have marked a want of foresight in the con-
vention, which our own experience would have ren-
dered inexcusable.
§ 1847. " Two questions of a very delicate na-
ture present themselves on this occasion. (1.)
On what principle the confederation, which stands in
the solemn form of a compact among the states, can
be superceded without the unaniinous consent of the
parties to it ? (2.) What relation is to subsist be-
tween the nine or more states ratifying the constitu-
tion, and the remaining few, who do not become par-
ties to it ?
§» 1848. " The first question is answered at once,
by recurring to the absolute necessity of the case ;
to the great principle of self-preservation ; to the
transcendent law of nature, and of nature's God,
w^hich declares, that the safety and happiness of so-
ciety, are the objects, at which all political institutions
1 Ante, Vol. I, § 279.
CH. XLIII.] RATIFICATION OF CONSTITUTION. 711
aim, and to whicli all such institutions must be sacri-
ficed. Pei'haps, also, an answer may be found, with-
out searching beyond the principles oi' the compact
itself. It has been heretofoie noted among the de-
fects of the confederation, ihat, in many of the states,
it had received no higher sanction, than a mere leg-
islative ratification. The principle of reciprocity
seems to require, that its obligation on the other
states should be reduced to the same slandard. A
compact between independent sovereigns, founded
on acts of legislative authority, can pretend to no
higher validity, than a league or treaty between the
parties. It is an established doctrine, on the subject
of treaties, that all the articles are mutually conditions
of each other ; that a breach of any one article is a
breach of the w hole treaty ; and that a breach, com-
mitted by either of the parties, absolves the others ;
and authorizes them, if they please, to pronounce the
compact violated, and void. Should it unhappily be
necessary to appeal to these delicate truths, for a
justification for dispensing with the consent of partic-
ular states to a dissolution of the federal pact, will
not the complaining parties find it a difficult task to
answer the multiplied and important infractions, with
which they may be confronted ? The time has been,
when it was incumbent on us all to veil the idea,
which this paragraph exhibits. The scene is now
changed, and with it, the part, which the same mo-
tives dictated.
§ 1849. "The second question is not less delicate;
and the flattering prospect of its being nearly hypothet-
ical, forbids an over-curious discussion of it. It is one
of those cases, which must be left to provide for itself.
In general, it may be observed, that although no politi-
712 CONSTITUTION OF THE U. STATES. [bOOK III.
cal relation can subsist between the assenting and dis-
senting states, yet the moral relations will remain un-
cancelled. The claims of justice, both on one side,
and on the other, will be in force, and must be fulfilled;
the rights of humanity must, in all cases, be duly and
mutually respected ; whilst considerations of a com-
mon interest, and above all, the remembrance of the
endearing scenes, which are past, and the anticipation
of a speedy triumph over the obstacles to re-union,
will, it is hoped, not urge in vain moderation on one
side, and prudence on the other." ^
§ 1850. And here closes our review of the consti-
tution in the original form, in which it was framed for,
and adopted by, the people of the United States. The
concluding passage of it is, " Done in convention by
the unanimous consent of all the states present, the
seventeenth day of September, in the year of our Lord
one thousand seven hundred and eighty-seven, and of
the Independence of the United States of America,
the twelfth." At the head of the illustrious men, who
framed, and signed it, (men, who have earned the
eternal gratitude of their country,) stands the name of
George Washington, "President and Deputy from
Virginia;" a name, at the utterance of which envy is
dumb, and pride bows with involuntary reverence, and
piety, with eyes lifted to heaven, breathes forth a prayer
of profound gratitude.
1 The Federalist, No. 43.
CH. XLIV.] AMENDMENTS HII.L OF RIGHTS. 713
CHAPTER XLIV.
AMENDMENTS TO THE CONSTITUTION.
^ 1851. We have already had occasion to take no-
tice of some of the amendments made to the consti-
tution, subsequent to its adoption, in the progress of
our review of the provisions of the original instru-
ment. The present chapter will be devoted to a
consideration of those, which have not fallen within
the scope of our former commentaries.
^ 1852. It has been already stated, that many ob-
jections were taken to the constitution, not only on
account of its actual provisions, but also on account
of its deficiencies and omissions.^ Among the latter,
none were proclaimed with more zeal, and pressed
with more effect, than the want of a bill of rights.
This, it was said, was a fatal defect ; and sutBcient of
itself to bring on the ruin of the republic.^ To this
objection several answers were given ; first, that the
constitution did in fact contain many provisions in the
nature of a bill of rights, if the whole constitution
was not in fact a bill of rights ; secondly, that a bill
of rights was in its nature more adapted to a monar-
chy, than to a government, professedly founded upon
the will of the people, and executed by their imme-
diate representatives and agents ; and, thirdly, that a
formal bill of rights, beyond what was contained in it,
was wholly unnecessary, and might even be dan-
gerous.^
1 Vo!. I.,B. 3, ch. 2.
2 2 Amer. Museum, 423, 424, 425 ; Id. 435 ; Id. 534 ; Id. 540, 543,
546 ; Id. 553.
3 The Federalist, No. 8 ; 3 Amer. Museum, 78, 79 ; Id. 559.
VOL. III. 90
714 CONSTITUTION OF THE U. STATES. [bOOK III.
^ 1853. The first answer was supported by refer-
ence to tha clauses in the constitution, providing for
the judgment in cases of impeachment; the privilege
of the wnt. of habeas corpus ; the trial by jury in crim-
inal cases ; the definition, trial, and punishment of
treason ; the prohibition of bills of attainder, ex post
facto laws, laws impairing the obligation of contracts,
laws granting titles of nobility, and laws imposing
religious tests. All these were so many declarations
of rights for the protection of the citizens, not ex-
ceeded in value by any, which could possibly find a
place in any bill of rights.^
^ 1854. Upon the second point it w^as said, that
bills of rights are in their origin stipulations between
kings and their subjects, abridgments of prerogative
in favour of privilege, and reservations of rights not
surrendered to the prince. Such was Magna Charta
obtained by the barons, sword in hand, of King John.
Such were the subsequent confirmations of that char-
ter by succeeding princes. Such was the petition of
right assented to by Charles the First in the begin-
ning of his reign. Such, also, was the declaration of
rights presented by the lords and commons to the
prince of Orange in 1688, and afterwards put into the
form of an act of parliament, called the bill of rights.^
It is evident, therefore, that according to its primitive
signification, a bill of rights has no application to con-
stitutions professedly founded upon the power of the
people, and executed by persons, who are immedi-
ately chosen by them to execute their will. In our
1 The Federalist, No. 84.
~ Mr. Chancellor Kent has j^iven an exact, though succinct history
of the hills of rights, hoth in the mother country and the colonies, in
2 Kent's Coram. Lect. 24.
CH. XLIV.] AMENDMENTS BILL OF RIGHTS. 715
country, in strictness, the people surrender nothing;
and as they retain every thing, they have no need oi"
pir:icular reservations.^ "We, the people of the
United States, to secure the blessings of libertij to
ourselves and our posterity, do ordain and establish
this constitution for the United States of America" —
is a better recognition of popular rights, than volumes
of those aphorisms, which make a principal figure in
several of our state bills of rights, and which would
sound much better in a treatise of ethics, than in a
constitution of government.^
§ 1855. Upon the third point, it was said, that a
minute detail of particular rights was certainly far less
applicable to a constitution, designed to regulate the
general political concerns of the nation, than to one,
which had the regulation of every species of personal
and private concerns. But (it was added) the argu-
ment might justly be carried further. It might be
affirmed, that a bill of rights, in the sense and extent,
which is contended for, was not only wholly unne-
cessary, but might even be dangerous. Such a bill
would contain various exceptions to powers not grant-
ed ; and on this very account might afford a coloura-
ble pretext to claim more than was granted.^ For
why (it might be asked) declare, that things shall not
be done, which there is no power to do? Why, for
instance, that the liberty of the press shall not be
restrained, when no power is given, by which restric-
tions may be imposed? It is true, that upon sound
reasoning a declaration of this sort could not fairly
be construed to imply a regulating power; but it
1 1 Lloyd's Debates, 430, 431, 432.
2 The Federalist, No. 84.
3 1 Lloyd's Debates, 433, 437.
716 CONSTITUTION OF THE U. STATES. [bOOK III.
might be seized upon by men disposed to usurpation,
in order to furnish a phiusible pretence for claiming
the power. They might urge with a semblance of
reason, that the constitution ought not to be charged
with the absurdity of providing against an abuse of
an authority, which was not given ; and that the pro-
vision against restraining the Hberty of the press,
afforded a clear implication, that a right to prescribe
proper regulations concerning it, was intended to be
vested in the national government.
^ 1856. It was further added, that in truth the con-
stitution itself was, in every rational sense, and to
every useful purpose, a bill of rights for the Union.
It specifies, and declares the poUdcal privileges of the
citizens in the structure and administration of the
government. It defines certain immunities and modes
of proceeding, which relate to their personal, private,
and public rights and concerns. It confers on them
the unalienable right of elecdng their rulers; and
prohibits any tyrannical measures, and vindictive pros-
ecutions. So, that, at best, much of the force of the
objection rests on mere nominal distinctions, or upon
a desire to make a frame of government a code to
regulate rights and remedies.^
§ 1857. Although it must be conceded, that there
is much intrinsic force in this reasoning,^ it cannot in
1 The Federalist, No. 84. See 1 Lloyd's Debates, 428, 429, 430 ;
3 Amer. Museum, .559.
2 It had, beyond all question, extraordinary influence in the conven-
tion; for upon a motion l)eini»' made to appoint a committee to prepare
a bill of riglits, the proposition was unanimously rejected. Journal of
Convention, p. 3f)9. This fact alone shows, that it was at best deemed
a subject of doubtful propriety ; and that it formed no line of distinction
between any of the parties in the convention. There will be found
considerable reasoning on the subject in the debates in congress on the
amendments proposed in J789. See 1 Lloyd's Debates, 414 to 426;
Id. 420 to 4 17.
CH. XLIV.] AMENDMENTS BILL OF RIGHTS. 717
candour be admitted to be wholly satisfactory, or
conclusive on the subject. It is rather the argument
of an able advocate, than the reasoning of a consti-
tutional statesman. In the first place, a bill of rights
(in the very sense of this reasoning) is admitted in
some cases to be important; and the constitution
itself adopts, and establishes its propriety to the ex-
tent of its actual provisions. Every reason, which
establishes the propriety of any provision of this sort
in the constitution, such as a right of trial by jury in
criminal cases, is, pro tanio, proof, that it is neither
unnecessary nor dangerous. It reduces the question
to the consideration, not whether any bill of rights is
necessary, but w^hat such a bill of rights should pro-
perly contain. That is a point for argument, upon
which different minds may arrive at different conclu-
sions. That a bill of rights may contain too many
enumerations, and especially such, as more correctly
belong to the ordinary legislation of a government,
cannot be doubted. Some of our state bills of rights
contain clauses of this description, being either in
their character and phraseology quite too loose, and
general, and ambiguous ; or covering doctrines quite
debatable, both in theory and practice ; or even lead-
ing to mischievous consequences, by restricting the
legislative power under circumstances, which were not
foreseen, and if foreseen, the restraint would have been
pronounced by all persons inexpedient, and perhaps
unjust.^ Indeed, the rage of theorists to make con-
stitutions a vehicle for the conveyance of their own
crude, and visionary aphorisms of government, requires
1 2 Kent's Comm. Lect. 24, p. 6, (2d edition, p. 0,) and note Ibid. ;
1 Lloyd's Debates, 431, 432.
718 CONSTITUTION OF THE U. STATES. [BOOK III.
to be guarded against with the most unceasing vigi-
lance.^
§ 1858. In the next place, a bill of rights is impor-
tant, and may often be indispensable, whenever it op-
erates, as a quahfication upon powers, actually granted
by the people to the government.^ This is the real
ground of all the bills of rights in the parent country,
in the colonial constitutions and laws, and in the state
constitutions. In England, the bills of rights were
not demanded merely of the crown, as withdrawing
a power from the royal prerogative ; they were equally
important, as withdrawing power from parliament.
A large proportion of the most valuable of the pro-
visions in Magna Charta, and the bill of rights in
1688, consists of a solemn recognition, of limitations
upon the power of parliament ; that is, a declaration,
that parliament ought not to abolish, or restrict those
rights. Such are the right of trial by jury ; the right
to personal liberty and private property according to
the law of the land; that the subjects ought to have
a right to bear arms ; that elections of members of
parliament ought to be free ; that freedom of speech
and debate in parhament ought not to be impeached,
or questioned elsewhere ; and that excessive bail
ought not to be required, nor excessive fines imposed,
nor cruel or unusual punishments inflicted.^ When-
ever, then, a general power exists, or is granted to a
government, which may in its actual exercise or abuse
be dangerous to the people, there seems a peculiar
1 This whole subject is treated with great felicity and force by Mr.
Chancellor Kent in his Commentaries ; and the whole lecture will re-
ward a most diligent perusal. 2 Kent's Comra. Lect. 24.
2 1 Lloyd's Debates, 429, 430, 431, 432.
3 See Magna Charta, ch. 29 ; Bill of Rights, 1688 ; 5 Cobbett's Pari.
Hist. p. 110.
CH. XLIV.] AMENDMENTS BILL OF RIGHTS. 719
propriety in restricting its operations, and in except-
ing from it some at least of the most mischievous
forms, in which it may be hkely to be abused. And
the very exception in such cases will operate with a
silent, but irresistible influence to control the actual
abuse of it in other analogous cases. ^
§ 1859. In the next place, a bill of rights may be
important, even when it goes beyond powers suppos-
ed to be granted. It is not always possible to fore-
see the extent of the actual reach of certain powers,
which are given in general terms. They may be
construed to extend (and perhaps fairly) to certain
classes of cases, which did not at first appear to be
Avithin them. A bill of rights, then, operates, as a
guard upon any extravagant or undue extension of
such powers. Besides ; (as has been justly remark-
ed,) a bill of rights is of real efficiency in controlling
the excesses of party spirit. It serves to guide, and
enlighten public opinion, and to render it more quick
to detect, and more resolute to resist, attempts to
disturb private rights. It requires more than ordi-
nary hardihood and audacity of character, to trample
down principles, which our ancestors have consecrat-
ed with reverence ; which we imbibed in our early
education ; which recommend themselves to the judg-
ment of the world by their truth and simplicity; and
which are constantly placed before the eyes of the
people, accompanied with the imposing force and
solemnity of a constitutional sanction. Bills of rights
are a part of the muniments of freemen, showing their
title to protection; and they become of increased
value, when placed under the protection of an inde-
1 1 Lloyd's Debates, 431, 432, 433, 434.
720 CONSTITUTION OF THE U, STATES. [bOOK III.
pendent judiciary instituted, as the appropriate guar-
dian of the pubUc and private rights of the citizens.^
§ 1860. In the next place, (it has been urged with
much earnestness,) a bill of rights is an important pro-
tection against unjust and oppressive conduct on the
part of the people themselves. In a government modi-
fied, like that of the United States, (said a great states-
man,^) the great danger Hes rather in the abuse of the
community, than of the legislative body. The prescrip-
tions in favour of liberty ought to be levelled against
that quarter, where the greatest danger hes, namely,
that which possesses the highest prerogative of power.
But this is not found in the executive or legislative de-
partments of government; but in the body of the
people, operating by the majority against the minority.
It may be thought, that all paper barriers against the
power of the community are too weak to be worthy of
attention. They are not so strong, as to satisfy all, who
have seen and examined thoroughly the texture of
such a defence. Yet, as they have a tendency to im-
press some degree of res])ect for them, to establish the
public opinion in their favour, and to rouse the attention
of the whole community, it may be one means to control
the majority from those acts, to which they might be
otherwise inclined.^
^1861. In regard to another suggestion, that the
affirmance of certain rights might disparage others, or
might lead to argumentative implications in favour of
other powers, it might be sufficient to say, that such
a course of reasoning could never be sustained upon
any solid basis ; and it could never furnish any just
1 1 Kent's Cornm. Lect. 24, p. 5, C, (2d edition, p. 8) ; 1 Lloyd's De-
bates, 429, 430, 431.
2 Mr. Madison, 1 Lloyd's Deb. 431. 3 Ibid.
CH. XLIV.] AMENDMENTS BILL OF RIGHTS. 721
ground of objection, that ingenuity might pervert, or
usurpation overleap, the true sense. That objection
will equally lie against all powers, whether large or
limited, whether national or state, whether in a bill of
rights, or in a frame of government. But a conclu-
sive answer is, that such an attempt may be interdict-
ed, (as it has been,) by a positive declaration in
such a bill of rights, that the enumeration of certain
rights shall not be construed to deny or disparage
others retained by the people.^
§ 1862. The want of a bill of rights, then, is not
either an unfounded or illusory objection. The real
question is not, whether every sort of right or privilege
or claim ought to be affirmed in a constitution ; but
w^hether such, as in their own nature are of vital im-
portance, and peculiarly susceptible of abuse, ought
not to receive this solemn sanction. Doubtless, the
want of a formal bill of rights in the constitution was
a matter of very exaggerated declamation, and party
zeal, for the mere purpose of defeating the constitu-
tion.^ But so far as the objection was well founded
in fact, it was right to remove it by subsequent amend-
ments ; and congress have (as we shall see) accord-
ingly performed the duty with most prompt and lauda-
ble diligence.^
1 Constitution, 9th Amendment; 1 Lloyd's Deb. 433.
2 The Federalist, No. 84. See also 2 Elliot's Deb. 65, 160, 243, 330,
331, 334, 344, 345, 346 ; 1 Jefferson's Corrcsp. 64 ; 2 Jefferson's Cor-
resp. 274, 291, 344, 443, 459 ; 1 Tuck. Black. Comm. App. 308 ; 2 Amer.
Museum, 334, 378, 421, 540 ; 3 Amer. Museum, 548, 559 ; 1 Lloyd's
Deb. 423 to 437 ; 5 Marshall's Life of Washington, ch. 3, p. 207 to 210.
3 See 5 Marshall's Lite of Washington, ch. 3, p. 207 to 210. — Con-
gress, in the preamble to these amendments, use the following lan-
guage: "The conventions of a number of the states having at the time
of adopting the constitution expressed a desire, in order to prevent mis-
VOL. III. 91
722 CONSTITUTION OF THE U. STATES. [bOOK III.
§ 1863. Let us now enter upon the consideration
of the amendments, which, it will be found, principally
regard subjects properly belonging to a bill of rights.
§ 1864. The first is, " Congress shall make no law
" respecting an establishment of religion, or prohibit-
"ing the free exercise thereof; or abridging the free-
" dom of speech, or of the press ; or the right of the
" people peaceably to assemble, and to petition gov-
" ernment for a redress of grievances."
§ 1865. And first, the prohibition of any estabhsh-
ment of religion, and the freedom of religious opinion
and worship.
How far any government has a right to interfere in
matters touching religion, has been a subject much dis-
cussed by writers upon public and political law. The
right and the duty of the interference of government,
in matters of religion, have been maintained by many
distinguished authors, as well those, who were the
warmest advocates of free governments, as those,
who were attached to governments of a more arbitra-
ry character.^ Indeed, the right of a society or gov-
ernment to interfere in matters of religion will hardly
be contested by any persons, who believe that piety,
religion, and morality are intimately connected with
the well being of the state, and indispensable to the
administration of civil justice. The promulgation of
construction, or abuse of its powers, that further declaratory and
restrictive clauses should be added; and as extending the ground of
public confidence in the government will best ensure the beneficent
ends of its institution, &c. &c." 1 Tuck. Black. Comm. App. 269.
1 See Grotius, B. 2, ch. 20, § 44 to 51 ; Vattell, B. 1, ch. 12, § 125,
126; Hooker's Ecclesiastical Polity, B. 5, § 1 to 10; Bynkershceck,
2 P. J. Lib. 2, ch. 18; Woodeson's Elem. Lect. 3, p. 49; Burlemaqui,
Pt. 3, ch. 3, p. 171, and Montesq. B. 24, ch. 1 to ch. 8, ch. 14 to ch. 16,
B. 25, ch. 1, 2, 9, 10, 11, 12.
CH. XLIV.] FREEDOM OF RELIGION. 723
the great doctrines of religion, the being, and attri-
butes, and providence of one Ahiiighty God ; the
responsibility to him for all our actions, founded upon
moral freedom and accountability ; a future state of
rewards and punishments ; the cultivatio;i of all
the personal, social, and benevolent virtues ; — these
never can be a matter of indifference in any well or-
dered community.^ It is, indeed, difficult to con-
ceive, how any civilized society can well exist with-
out them. And at all events, it is impossible for
those, who believe in the truth of Christianity, as a
divine revelation, to doubt, that it is the especial du-
ty of government to foster, and encourage it among
all the citizens and subjects. This is a point wholly
distinct from that of the right of private judgment in
matters of religion, and of the freedom of public wor-
ship according to the dictates of one's conscience.
^ 1866. The real difficulty lies in ascertaining the
limits, to which government may rightlnlly go in fos-
tering and encouraging religion. Three cases may
easily be supposed. One, where a government
affords aid to a particular religion, leaving all persons
free to adopt any other; another, where it creates
an ecclesiastical establishment for the propagation of
the doctrines of a particular sect of that religion, leav-
ing a like freedom to all others ; and a third, where
it creates such an establishment, and excludes all per-
sons, not belonging to it, either wholly, or in part, from
any participation in the public honours, trusts, emolu-
ments, privileges, and immunities of the state. For
instance, a government may simply declare, that the
Christian rehgion shall be the religion of the state,
1 See Burlemaqui, Pt. 3, cli. 3, p. 171, &c. ; 4 Black. Comra.43.
724 CONSTITUTION OF THE U. STATES. [bOOK III.
and shall be aided, and encouraged in all the varieties
of sects belonging to it ; or it may declare, that the
Cathohc or Protestant religion shall be the religion of
the state, leaving every man to the free enjoyment of
his own reiigious opinions ; or it may establish the
doctrines of a particular sect, as of Episcopalians, as
the rehgion of the state, with a like freedom ; or it
may establish the doctrines of a particular sect, as ex-
clusively the religion of the state, tolerating others to
a limited extent, or excluding all, not belonging to it,
from all public honours, trusts, emoluments, privileges,
and immunities.
§ 1867. Now, there will probably be found few
persons in this, or any other Christian country, who
Would deliberately contend, that it w^as unreasonable,
or unjust to foster and encourage the Christian re-
ligion generally, as a matter of sound policy, as well
as of revealed truth. In fact, every American colony,
from its foundation down to the revolution, with the
exception of Rhode Island, (if, indeed, that state be
an exception,) did openly, by the wliole course of its
laws and institutions, support and sustain, in some
form, the Christian religion ; and almost invariably
gave a peculiar sanction to some of its fundamental
doctrines. And this has continued to be the case in
some of the states down to the present period, with-
out the slightest suspicion, that it was against the
principles of pu1)lic law, or republican liberty.^ In-
deed, in a republic, there would seem to be a pecu-
liar propriety in viewing the Christian religion, as the
great basis, on which it must rest for its support and
permanence, if it be, what it has ever been deemed by
1 2 Kent's Coram. Lect. 34, p. 35 to 37; Rawle on Const, ch- 10,
p. 121, 122.
CH. XLIV.] FREEDOM OF RELIGION. 725
its truest friends to be, the religion of liberty. Montes-
quieu has remarked, that the Christian religion is a
stranger to mere despotic power. The mildness so
frequently recommended in the gospel is incompati-
ble with the despotic rage, with which a prince pun-
ishes his subjects, and exercises himself in cruelty.-*
He has gone even'Turther, and affirmed, that the Pro-
testant religion is far more congenial with the spirit
of political freedom, than the Catholic. " When,"
says he, '^ the Christian religion, two centuries ago,
became unhappily divided into Cathohc and Protest-
ant, the people of the north embraced the Protestant,
and those of the south still adhered to the Catholic.
The reason is plain. The people of the north have,
and will ever have, a spirit of hberty and indepen-
dence, which the people of the south have not. And,
therefore, a religion, which has no visible head, is
more agreeable to the independency of climate, than
that, which has one." ^ Without stopping to inquire,
whether this remark be well founded, it is certainly
true, that the parent country has ^cted upon it with
a severe and vigilant zeal ; and in most of the colonies
the same rigid jealousy has been maintained almost
down to our own times. Massachusetts, while she
has promulgated in her bill of rights the impor-
tance and necessity of the public support of religion,
and the w^orship of God, has authorized the legisla-
ture to require it only for Protestantism. The lan-
guage of that^bill of rights is remarkable for its point-
ed affirmation of the duty of government to support
Christianity, and the reasons for it. " As," says the
1 Montesq. Spirit of Laws, B. 24, ch. 3.
2 Montesq. Spirit of Laws, B. 24, ch. 5.
726 CONSTITUTION OF THE U. STATES. [bOOK III.
third article, " the happiness of a people, and the
good order and preservation of civil government, es-
sentially depend upon piety, relig on, and morality;
and as these cannot be generally diffused through the
community, but by the institution of the pubUc wor-
ship of God, and of public instructions in piety,
religion, and morality; therefore, to promote their
happiness and to secure the good order and preser-
vation of their government, the people of this Com-
monwealth have a right to invest their legislature w^ith
power to authorize, and require, and the legislature
shall from time to time authorize and require, the
several towns, parishes, &:c. &:c. to make suitable
provision at their own expense for the institution of
the public w^orship of God, and for the support and
maintenance of public protesiant teachers of piety,
religion, and morality, in all cases W'here such pro-
vision shall not be made voluntarily." Afterwards
there follow provisions, prohibiting any superiority
of one sect over another, and securing to all citizens
the free exercise of religion.
§ 1868. Probably at the time of the adoption of the
constitution, and of the amendment to it, now under
consideration, the general, if not the universal, senti-
ment in America w^as, that Christianity ought to re-
ceive encouragement from the state, so far as was not
incompatible with the private rights of conscience,
and the freedom of religious w^orship. An attempt to
level all religions, and to make it a matter of state
policy to hold all in utter indifference, would have
created universal disapprobation, if not universal in-
dignation.'
1 See 2 Lloyd's Deb. 195, 196.
CH. XLIV.] FREEDOM OF RELIGION. 727
§ 1869. It yet remains a problem to be solved in
human afiairs, whether any i'ree government can be
permanent, where the public worship of God, and the
support of religion, constitute no part of the policy or
duty of the state in any assignable shape. The fu-
ture experience of Christendom, and chiefly of the
American states, must settle this problem, as yet new
in the history of the world, abundant, as it has been, in
experiments in the theory of government.
§ 1870. But the duty of suppordng religion, and
especially the Christian religion, is very different from
the right to force the consciences of other men, or to
punish them for worshipping God in the manner, which,
they believe, their accountability to him requires.
It has been truly said, that " religion, or the duty we
owe to our Creator, and the manner of discharging it,
can be dictated only by reason and conviction, not by
force or violence," ^ Mr. Locke himself, who did not
doubt the right of government to interfere in matters of
religion, and especially to encourage Christianity, at
the same time has expressed his opinion of the right of
private judgment, and liberty of conscience, in a man-
ner becoming his character, as a sincere friend of civil
and religious liberty. " No man, or society of men,"
says he, " have any authority to impose their opinions
or interpretadons on any other, the meanest Christian ;
since, in matters of religion, every man must know, and
believe, and give an account for himself."^ The rights
of conscience are, indeed, beyond the just reach of
any human power. They are given by God, and can-
not be encroached upon by human authority, without
1 Virginia Bill of Rights, 1 Tuck. Black. Comm. App. 296; 2 Tuck.
Black. Comm. App. note G. p. 10, 11.
2 Lord King's Life of Locke, p. 373.
728 CONSTITUTION OF THE U. STATES. [bOOK III.
a criminal disobedience of the precepts of natural, as
well as of revealed religion.
^ 1871. The real object of the amendment was, not
to countenance, much less to advance Mahometanism,
or Judaism, or infidelity, by prostrating Christianity ;
but to exclude all rivalry among Christian sects, and
to prevent any national ecclesiastical establishment,
which should give to an hierarchy the exclusive pa-
tronage of the national government. It thus cut oflf
the means of religious persecution, (the vice and pest
of former ages,) and of the subversion of the rights
of conscience in matters of religion, which had been
trampled upon almost from the days of the Apostles
to the present age.^ The history of the parent coun-
try had afforded the most solemn warnings and mel-
ancholy instructions on this head ; ^ and even New-
England, the land of the persecuted puritans, as well
as other colonies, where the Church of England had
maintained its superiority, would furnish out a chapter,
as full of the darkest bigotry and intolerance, as any,
which could be found to disgrace the pages of foreign
annals.^ Apostacy, heresy, and nonconformity had
been standard crimes for public appeals, to kindle the
flames of persecution, and apologize for the most
atrocious triumphs over innocence and virtue.^
^ 1872. Mr. Justice Blackstone, after having spok-
en with a manly freedom of the abuses in the Romish
church respecting heresy ; and, that Christianity had
been deformed by the demon of persecution upon the
continent, and that the island of Great Britain had
1 2 Lloyd's Deb. 195.
2 4 Black. Cornm. 41 to 59.
3 Ante, Vol. I. ^S 5J, 72, 74.
4 See 4 Black. Comra. 43 to 59.
CH. XLIV.] FREEDOM OF RELIGION. 729
not been enlirch) free from the scourge,^ defends the
final enactments against nonconformity in England, in
the following set phrases, to which, without any ma-
terial change, might be jusdy applied his own sarcas-
tic remarks upon the conduct of the Roman ecclesi-
astics in punishing heresy.^ "For nonconformity to the
worship of the church," (says he,) " there is much
more to be pleaded than for the former, (that is, re-
viling the ordinances of the church,) being a matter of
private conscience, to the scruples of which our pres-
ent laws have shown a very just, and Christian indul-
gence. For undoubtedly all persecution and oppression
of weak consciences, on the score of religious persua-
sions, are highly unjustifiable upon every principle of
natural reason, civil liberty, or sound rebgion. But
care must be taken not to carry this indulgence into
such extremes, as may endanger the national church.
There is always a difference to be made between
1 '■'■ Entirely "/ Should he not have said, never free from the scourge,
as more conformable to historical truth ?
2 4 Black. Comm. 45, 46. — His words are : " It is true, that the sanc-
timonious hypocrisy of the Canonists went, at first, no further, than
enjoining penance, excommunication, and ecclesiastical deprivation for
lieresy, though afterwards they proceeded to imprisonment by the ordi-
nary, and confiscation of goods in pios vsiis. But in the mean time they
had prevailed upon the weakness of bigotted princes to make the civil
power subservient to their purposes, by making heresy not only a tem-
poral, but even a capital oifence ; the Romish Ecclesiastics determining,
without appeal, whatever they pleased, to be heresy, and shifting off to
the secular arm the odium and the drudgery of executions, with which
they themselves were too tend3r and delicate to intermeddle. Nay,
they pretended to intercede, and pray in behalf of the convicted heretic,
ut citra mortis pcriculum senteniia circum eum modcratiir, well knowing,
at the same time, that they were delivering the unhappy victim to cer-
tain death." 4 Black. Comm. 45, AG. Yet the learned author, in the
same breath, could calmly vindicate the outrageous oppressions of the
Church of England upon Catholics and Dissenters with the unsuspecting
satisfaction of a bigot.
VOL. III. 92
730 CONSTITUTION OF THE U. STATES. [bOOK III.
toleration and establishment." ^ Let it be remember-
ed, that at the very moment, when the learned com-
mentator was penning these cold remarks, the laws of
England merely tolerated protestant dissenters in their
public worship upon certain conditions, at once irri-
tating and degrading ; that the test and corporation
acts excluded them from public and corporate offices,
both of trust and profit ; that the learned commenta-
tor avows, that the object of the test and corporation
acts w^as to exclude them from office, in common with
Turks, Jews, heretics, papists, and other sectaries;^
that to deny the Trinity, however conscientiously dis-
befieved, was a public offence, punishable by fine and
imprisonment ; and that, in the rear of all these disa-
bilities and grievances, came the long list of acts
against papists, by which they were reduced to a state
of political and religious slavery, and cut off from some
of the dearest privileges of mankind.^
^ 1873. It was under a solemn consciousness of
the dangers from ecclesiastical ambition, the bigotry of
spiritual pride, and the intolerance of sects, thus ex-
emplified in our domestic, as well as in foreign annals,
that it was deemed advisable to exclude from the
national government all power to act upon the sub-
ject.^ The situation, too, of the different states
1 4 Black. Comm. 51, 52. 2 1 Black. Comm. 58.
3 1 Black. Comm. 51 to 59. — Mr. Tucker, in his Commentaries on
Blackstone, has treated the whole subject in a manner of most marked
contrast to that of Mr. J. Blackstone. His ardour is as strong, as the
coolness of his adversary is iiumiliating', on the subject of religious lib-
erty. 2 Tuck. Black. Comm. App. Note G. p. 3, &c. See also 4 Jeffer-
son's Corresp. 103, 104; Jefferson's Notes on Virginia, 2G4 to 270;
1 Tuck. Black. Comm. App. 296.
4 2 Lloyd's Debates, 195, 196, 197. — " The sectarian spirit," said the
late Dr. Currie, "is uniformly selfish, proud, and unfeeling." (Edin-
burgh Review, April, 1832, p. 125.)
CH. XLIV.] LIBERTY OF THE PRESS. 781
equally proclaimed the policy, as well as the necessity
of such an exclusion. In some of the states, epis-
copalians constituted the predominant sect ; in oth-
ers, presbyterians ; in others, congregationalists ; in
others, quakers ; and in others again, there was a
close numerical rivalry among contending sects. It
was impossible, that there should not arise perpetual
strife and perpetual jealousy on the subject of eccle-
siastical ascendancy, if the national government were
left free to create a religious establishment. The
only security was in extirpating the power. But this
alone would have been an imperfect security, if it had
not been followed up by a declaration of the right of
the free exercise of religion, and a prohibition (as we
have seen) of all religious tests. Thus, the whole pow-
er over the subject of religion is left exclusively to the
state governments, to be acted upon according to
their own sense of justice, and the state constitutions ;
and the Catholic and the Protestant, the Calvinist and
the Arminian, the Jew and the Infidel, may sit down
at the common table of the national councils, without
any inquisition into their faith, or mode of worship.^
§ 1874. The next clause of the amendment respects
the liberty of the press. " Congress shall make no
law abridging the freedom of speech, or of the press." ^
That this amendment was intended to secure to every
citizen an absolute right to speak, or write, or print,
w^hatever he might please, without any responsibility,
public or private, therefor, is a supposition too wild to
' See 2 Kent's Comm. Lcct. 24, (2d edition, p. H5 to 37) ; Rawle on
Const, ch. 10, p. 121, 122 ; 2 Lloyd's Deb. 195. See also Vol. II. § 621.
2 In the convention a proposition was moved to insert in the consti-
tution a clause, that " the liberty of the press shall be inviolably preserv-
ed ;" but it was negatived by a vote of six states against five. Journal
of Convention, p. 377.
732 CONSTITUTION OF THE U. STATES. [bOOK III.
be indulged by any rational man. This would be to
allow to every citizen a right to destroy, at his plea-
sure, the reputation, the peace, the property, and even
the personal safety of every other citizen. A man
might, out of mere malice and revenge, accuse an-
other of the most infamous crimes ; might excite
against him the indignation of all his fellow citizens
by the most atrocious calumnies ; might disturb, nay,
overturn all his domestic peace, and embitter his pa-
rental affections ; might inflict the most distressing
punishments upon the weak, the timid, and the inno-
cent ; might prejudice all a man's civil, and political,
and private rights ; and might stir up sedition, rebel-
lion, and treason even against the government itself,
in the wantonness of his passions, or the corruption
of his heart. Civil society could not go on under
such circumstances. Men would then be obliged
to resort to private vengeance, to make up for the
deficiencies of the law ; and assassinations, and savage
cruelties, would be perpetrated with all the frequency
belonging to barbarous and brutal communities. It is
plain, then, that the language of this amendment im-
ports no more, than that every man shall have a right
to speak, write, and print his opinions upon any sub-
ject whatsoever, without any prior restraint, so always,
that he does not injure any other person in his rights,
person, property, or reputation ; ^ and so always, that
he does not thereby disturb the public peace, or attempt
to subvert the government.^ It is neither more nor
less, than an expansion of the great doctrine, recently
1 1 Tuck. Black. Coinm. App. 2!)7 to 299 : 2 Tuck. Black. Comm.
App. 11 ; 2 Kent's Coiimi. Lect. 24, p. 16 to 2G.
2 Jlawle on Const, ch. JO, p. 12:3, 124; 2 Kent's Comm. Lect. 24,
p. 10 to 2G ; De Lolme, B. 2, cii. 12, 13 : 2 Lloyd's Deb. 197, 198.
CH. XLIV.] LIBERTY OF THE PRESS. 733
brought into operation in the law of libel, that every
man shall be at liberty to publish what is true, with
good motives and for jusdfiable ends. And with this
reasonable limitation it is not only right in itseli", but it is
an inestimable privilege in a free government. Without
such a limitation, it might become the scourge of the
republic, first denouncing the principles of liberty, and
then, by rendering the most virtuous patriots odious
through the terrors of the press, introducing despotism
in its worst form.
^ 1875. A little attendon to the history of other
countries in other ages will teach us the vast impor-
tance of this right. It is notorious, that, even to this
day, in some foreign countries it is a crime to speak on
any subject, religious, philosophical, or pohtical, what is
contrary to the received opinions of the government,
or the institutions of the country, however laudable
may be the design, and however virtuous may be the
motive. Even to animadvert upon the conduct of
public men, of rulers, or representatives, in terms of
the strictest truth and courtesy, has been, and is deem-
ed, a scandal upon the supposed sanctity of their sta-
tions and characters, subjecting the party to grievous
punishment. In some countries no w orks can be printed
at all, whether of science, or literature, or philosophy,
without the previous approbation of the government;
and the press has been shackled, and compelled to
speak only in the timid language, which the ci'inging
courtier, or the capricious inquisitor, should license for
pubUcation. The Bible itselii the common inheritance
not merely of Christendom, but of the world, has been
put exclusively under the control of government ; and
not allowed to be seen, or heard, except in a language
unknown to the common inhabitants of the country.
734 CONSTITUTIOX OF THE U. STATES. [bOOK III.
To publish a translation in the vernacular tongue, has
been in former times a flagrant offence.
^ 1876. The history of the jurisprudence of Eng-
land, (the most free and enlightened of all monarchies,)
on this subject, will abundantly justify this statement.
The art of printing, soon after its introduction, (we are
told,) was looked upon, as well in England, as in other
countries, as merely a matter of state, and subject to
the coercion of the crown. It was therefore regulated
in England by the king's proclamations, prohibitions,
charters of privilege, and licenses, and finally by the
decrees of the court of Star Chamber ; which limited
the number of printers, and of presses, which each
should employ, and prohibited new publications, unless
previously approved by proper licensers. On the de-
molition of this odious jurisdiction, in 1641, the long
parliament of Charles the First, after their rupture with
that prince, assumed the same powers, which the Star
Chamber exercised, with respect to licensing books ;
and during the commonwealth, (such is human frailty,
and the love of power, even in republics !) they issued
their ordinances for that purpose, founded principally
upon a Star Chamber decree, in 1637. After the re-
storation of Charles the Second, a statute on the same
subject was passed, copied, with some few alterations,
from the parliamentary ordinances. The act expired
in 1679, and was revived and continued for a few years
after the revolution of 1688. Many attempts were
made by the government to keep it in force ; but it
was so strongly resisted by parliament, that it expired
in 1694, and has never since been revived.^ To this
> 4 Black. Comm. ]5"2, note ; 2 Tucker's Black. Comm. App. Note G.
p. V2, 1:5 ; De Lolme, B. 2, ch. \% V] ; 2 Kent's Comm. Lect. 24, (2d
edition, p. 17, 18,10.)
CH. XLIV.] LIBERTY OF THE PRESS. 735
very hour the liberty of the press in England stands
upon this negative foundation. The power to restrain
it is dormant, not dead. It has never constituted an
article of any of her numerous bills of rights ; and that
of the revolution of 1688, after securing other civil and
pohtical privileges, left this without noUce, as unworthy
of care, or fit for restraint.
§ 1877. This short review exhibits, in a striking light,
the gradual progress of opinion in favour of the liberty
of publishing and prindng opinions in England, and the
frail and uncertain tenure, by which it has been held.
Down to this \ery day it is a contempt of parliament,
and a high breach of privilege, to publish the speech of
any member of either house, without its consent.^ It
is true, that it is now silently established by the course
of popular opinion to be innocent in practice, though
not in law. But it is notorious, that w ithin the last
fifty years the publication w^as connived at, rather than
allowed ; and that for a considerable time the reports
were given in a stealthy manner, covered up under the
garb of speeches in a fictitious assembly.
^ 1878. There is a good deal of loose reasoning on
the subject of the liberty of the press, as if its inviola-
bility were constitutionally such, that, like the king of
England, it could do no wTong, and w as free from every
inquiry, and afforded a perfect sanctuary for every
abuse ; that, in short, it implied a despotic sovereignty
to do every sort of wrong, without the slightest ac-
countabiUty to private or public justice. Such a notion
is too extravagant to be held by any sound constitu-
tional lawyer, with regard to the rights and duties be-
longing to governments generally, or to the state gov-
1 See Corayn's Dig. Parliarnenij G. 9.
736 CONSTITUTION OF THE U. STATES. [BOOK IIL
ernments in particular. If it were admitted to be cor-
rect, it might be justly affirmed, that the liberty of the
press was incompatible with the permanent existence
of any free government. Mr. Jus dee Blackstone has
remarked, that the liberty of the press, properly under-
stood, is essential to the nature of a free state ; but
that this consists in laying no previous restraints upon
publicadons, and not in freedom from censure for crim-
inal m^atter, when published. Every freeman has an
undoubted right to lay what sentiments he pleases be-
fore the public ; to forbid this is to destroy the freedom
of the press. But, if he publishes what is improper,
mischievous, or illegal, he must take the consequences
of his own temerity. To subject the press to the
restricdve power of a licenser, as was formerly done
before, and since the revolution (of 1688), is to subject
all freedom of sendment to the prejudices of one man,
and make him the arbitrary and infallible judge of all
controverted points in learning, rehgion, and govern-
ment. But to punish any dangerous or offensive writ-
ings, which, when published, shall, on a fair and impar-
tial trial, be adjudged of a pernicious tendency, is neces-
sary for the preservation of peace and good order, of
government and religion, the only sohd foundations of
civil liberty. Thus, the will of individuals is still left
free ; the abuse only of that free will is the object of
legal punishment. Neither is any restraint hereby laid
upon freedom of thought or inquiry ; liberty of private
sendment is still left ; the disseminating, or making
public of bad sentiments, destructive of the ends of
society, is the crime, which society corrects. A man
may be allowed to keep poisons in his closet ; but not
publicly to vend them as cordials. And after some
additional rellections, he concludes with this memorable
CH. XLIV.] LIBERTY OF THE PRESS. 737
sentence : '' So true will it be found, that to censure
the licentiousness, is to maintain the liberty oi" the
press." ^
§ 1879. De Lolme states the same view of the
subject ; and, indeed, the liberty of the press, as
understood by all England, is the right to publish
without any previous restraint, or hcense ; so, that
neither the courts of justice, nor other persons,
are authorized to take notice of writinsis intended for
the press ; but are confined to those, which are print-
ed. And, in such cases, if their character is question-
ed, whether they are lawful, or libellous, is to be
tried by a jury, according to due proceedings at law.^
The noblest patriots of England, and the most
distinguished friends of liberty, both in parliament,
and at the bar, have never contended for a total ex-
emption from responsibihty, but have asked only, that
the guilt or innocence of the publication should be
ascertained by a trial by jury.^
1 1 Black. Comm. 152, 153 ; Rex v. Burdett, 4 Barn. & Aid. R. 95.—
Mr. Justice Best in Rex v. Burdett, (4 Barn. & Aid. R. 95, 132,) said
" my opinion of the liberty of the press is, that every man ought to be
permitted to instruct his fellow subjects ; that every man may fearlessly
advance any new doctrines, provided he does so with proper respect to
the religion and government of the country; that he may point out
errors in the measures of public men ; but, he must not impute criminal
conduct to them. The liberty of the press cannot be carried to this ex-
tent, without violating another equally sacred right, the right of cha-
racter. This right can only be attacked in a court of justice, where
the party attacked has a fair opportunity of defending himself. Where
vituperation begins, the liberty of the press ends."
2 De Lolme, B. 2, ch. 12, 291 to 297.
3 See also Rex v. Burdett, 4 Barn. & Aid. 95. — The celebrated act
of parliament of Mr. Fox, giving the right to the jury, in trials for li-
bels, to judge of the whole matter of the charge, and to return a gene-
ral verdict, did not affect to go farther. The celebrated defence of Mr.
Erskine, on the trial of the Dean of St. Asaph, took the same ground.
Even Junius, with his severe and bitter assaults upon established au-
voL. III. 93
738 CONSTITUTION OF THE U. STATES. [bOOK III
§ 1880. It would seem, that a very different view
of the subject was taken by a learned American
commentator, though it is not, perhaps, very easy to
ascertain the exact extent of his opinions. In one
part of his disquisitions, he seems broadly to contend,
that the security of the freedom of the press requires,
that it should be exempt, not only from previous res-
traint by the executive, as in Great Britain ; but, from
legislative restraint also ; and that this exemption,
to be effectual, must be an exemption, not only from
the previous inspectionof licensers, but from the sub-
sequent penalty of lavvs.^ In other places, he seems
as explicitly to admit, that the liberty of the press
does not include the right to do injury to the reputa-
tion of another, or to take from him the enjoyment
of his rights or property, or to justify slander and
calumny upon him, as a private or public man. And
yet it is added, that every individual certainly has a
right to speak, or publish his sendments on the mea-
sures of government. To do this, without restraint,
thority and doctrines, stopped here. " The liberty of the press," (said
he,) "is the palladium of all the civil, political, and religious rig-hts of
an Englishman, and the right of juries to return a general verdict in
all cases whatsoe^^er, is an essential part of our constitution." "The
laws of England, provide as effectually, as any liuman laws can do, for
the protection of the suhject in his reputation, as well as in his person and
property. If the characters of private men are insulted, or injured, a
double remedy is open to them, by action and by indictment." — '' With
regard to strictures upon the characters of men in office, and the mea-
sures of government, the case is a little different. A considerable lati-
tude must be allowed in the discussion of public affairs, or the liberty
of the press will be of no benefit to society." But he no where con-
tends for the right to publish seditious libels ; and, on the contrary,
through his whole reasoning he admits the duty to punish those, which
are really so.
1 2 Tuck. Black. Comm. App. 20; 1 Tuck. Black. Comm. App.
298, 299.
CH. XLIV.] LIBERTY OF THE PRESS. 739
control, ov fear of punishment for so doing, is that
which constitutes the genuine ireedom of the press. ^
Perhaps the apparent contraiiety of these opinions
may arise from mixing up, in the same disquisitions,
a discussion of the right of iliv. state governments,
with that of the national government, to interfere
in cases of this sort, which may stand upon very dif-
ferent foundations. Or, perhaps, it is meant to be
contended, that the liberty of the press, in all cases,
excludes public punishment for public wrongs ; but
not civil redress for private wrongs, by calumny and
libels.
^ 1881. The true mode of considering the subject
is, to examine the case with reference to a state
government, whose constitution, Uke that, for instance,
of Massachusetts, declares, that " the liberty of the
press is essential to the security of freedom in a
state ; it ought not, therefore, to be restrained in this
commonwealth." What is the true interpretation of
this clause? Does it prohibit the legislature from
passing any laws, which shall control the licentious-
ness of the press, or afford adequate protection to
individuals, whose private comfort, or good reputa-
tions are assailed, and violated by the press ? Does
it stop the legislature from passing any laws to punish
libels and inflammatory pubhcations, the object of
which is to excite sedition against the government,
to stir up resistance to its laws, to urge on conspira-
cies to destroy it, to create odium and indignation
against virtuous citizens, to compel them to yield up
their rights, or to make them the objects of popular
1 2 Tuck. Black, Comm. App. 28 to 30 ; 1 Tuck. Black. Comm.
App. 298, 299.
740 CONSTITUTION OF THE U. STATES. [bOOK III.
vengeance ? Would such a declaration in Virginia
(for she has, on more than one occasion, boldly pro-
claimed, that the liberty of the press ought not to be
restrained,) prohibit the legislature from passing laws
to punish a man, who should publish, and circulate
waitings, the design of which avowedly is to excite
the slaves to general insurrection against their mas-
ters, or to inculcate upon them the policy of secretly
poisoning, or murdering theml In short, is it con-
tended, that the liberty of the press is so much more
valuable, than all other rights in society, that the pub-
lic safety, nay the existence of the government itself
is to yield to it? Is private redress for libels and
calumny more important, or more valuable, than the
maintenance of the good order, peace, and safety of
society? It would be difficult to answer these ques-
tions in favour of the liberty of the press, without
at the same time declaring, that such a hcentiousness
belonged, and could belong only to a despotism ; and
was utterly incompatible with the principles of a free
government.
^ 1882. Besides: — What is meant by restraint
of the press, or an abridgment of its liberty ? If to
publish without control, or responsibility be its genuine
meaning ; is not that equally violated by allowing a
private compensation for damages, as by a public fine ?
Is not a man as much restrained from doing a thing
by the fear of heavy damages, as by public punish-
ment? Is he not often as severely punished by
one, as by the other ? Surely, it can make no diffe-
rence in the case, what is the nature or extent of the
restraint, if all restraint is prohibited. The legislative
power is just as much prohibited from one mode, as
from another. And it may be asked, where is the
CH. XLIV.] LIBERTY OF THE PRESS. 741
ground for distinguishing between public and private
amesnability ibr the wrong? The prohibition itself
states no distinction. It is general ; it is universal.
Why, then, is the distinction attempted to be made ?
Plainly, because of the monstrous consequences flow-
ing from such a doctrine. It would prostrate all per-
sonal liberty, all private peace, all enjoyment of property,
and good reputation. These are the great objects, for
which government is instituted ; and, if the licentious-
ness of the press must endanger, not only these, but
all public rights and public liberties, is it not as plain,
that the right of government to punish the violators ot
them (the only mode of redress, which it can pursue)
flows from the primary duty of self-preservation 7 No
one can doubt the importance, in a free government, of a
right to canvass the acts of public men, and the tenden-
cy of public measures, to censure boldly the conduct of
rulers, and to scrutinize closely the policy, and plans
of the government. This is the great security of a
free government. If we would preserve it, public opi-
nion must be enlightened ; political vigilance must be
inculcated ; free, but not Hcentious, discussion must be
encouraged. But the exercise of a right is essentially
different from an abuse of it. The one is no legiti-
mate inference from the other. Common sense here
promulgates the broad doctrine, sic utere ttio, vt non
alienum. Icedas ; so exercise your own freedom, as not
to infringe the rights of others, or the public peace and
safety.
§ 1883. The doctrine laid down by Mr. Justice
Blackstone, respecting the liberty of the press, has
not been repudiated (as far as is known) by any sol-
emn decision of any of the state courts, in respect to
their own municipal jurisprudence. On the contrary.
742 CONSTITUTION OF THE U. STATES. [bOOK III.
it has been repeatedly affirmed in several of the states,
notwithstanding their constitutions, or laws recognize,
that " the liberty of the press ought not to be restrain-
ed," or more emphatically, that "the liberty of the
press shall be inviolably maintained." This is espe-
cially true in regard to Massachusetts, South- Carolina,
and Louisiana.^ Nay ; it has farther been held, that
the truth of the facts is not alone sufficient to justify
the publication, unless it is done from good motives,
and for justifiable purposes, or, in other words, on an
occasion, (as upon the canvass of candidates for public
office,) when public duty, or private right requires it.^
And the very circumstance, that, in the constitutions of
several other states, provision is made for giving the
truth in evidence, in prosecutions for libels for official
conduct, when the matter published is proper for pub-
lic information, is exceedingly strong to show% how the
general law is understood. The exception establishes
in all other cases the propriety of the doctrine. And
Mr. Chancellor Kent, upon a large survey of the whole
subject, has not scrupled to declare, that " it has be-
come a constitutional principle in this country, that
every citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the
abuse of that right; and, that no law can rightfully be
passed, to restrain, or abridge the freedom of the
press.'' ^
§ 1884. Even with these reasonable limitations, it
is not an uncommon opinion among European states-
1 Commonwealth v. Clap, A Mass. R. 163; Commonwealth v. Blanding^
3 Pick. R. 304 : The Slalt v. Lehre, 2 Rep. Const. Court, 809 ; 2 Kent's
Comm. Lect. 24, (2d edition, p. 17 to 24.) 2 ihij.
3 1 Kent's Comm. Lcct. 24, (2d edition, p. 17 to 24.) See also Rawie
on Const, ch. 10, p. 123, 124.
CH. XLIV.] LIBERTY OF THE PRESS. 743
men of high character and extensive attainments, that
the hberty of the press is incompatible with the per-
manent existence of any free government ; nay, of any
government at all. That, if it be true, that free gov-
ernments cannot exist without it, it is quite as certain,
that they cannot exist with it. In short, that the press is
a new^ element in modern society ; and likely, in a great
measure, to control the power of armies, and the sove-
reignty of the people. That it works with a silence, a
cheapness, a suddenness, and a force, which may break
up, in an instant, all the foundations of society, and
move pubHc opinion, like a mountain torrent, to a gene-
ral desolation of every thing within its reach.
§ 1885. Whether the national government pos-
sesses a powder to pass any law, not restraining the
liberty of the press, but punishing the hcentiousness of
the press, is a quesdon of a very different nature, upon
which the commentator abstains from expressing any
opinion. In 1798, Congress, believing that they pos-
sessed a constitutional authority for that purpose, pass-
ed an act, punishing all unlawful combinations, and con-
spiracies, to oppose the measures of the government,
or to impede the operation of the laws, or to intimi-
date and prevent any officer of the United States from
undertaking, or execunng his duty. The same act
further provided, for a public presentation, and punish-
ment by fine, and imprisonment, of all persons, W'ho
should write, print, utter, or publish any false, scanda-
lous, and malicious wTiting, or writings against the gov-
ernment of the United States, or of either house of con-
gress, or of the president, with an intent to defame
them, or bring them into contempt, or disrepute, or to
excite against them the hatred of the good people of
the United States ; or to excite them to oppose any
744 CONSTITUTION OF THE U. STATES. [bOOK III.
law, or act of the president, in pursuance of law of
his constitutional powers ; or to resist, or oppose, or de-
feat any law ; or to aid, encourage, or abet any hostile
designs of any foreign nation against the United States.
And the same act authorized the truth to be given in
evidence on any such prosecution ; and the jury, upon
the trial, to determine the law and the fact, as in other
cases.^
§ 1886. This act was immediately assailed, as un-
constitutional, both in the state legislatures, and the
courts of law, where prosecutions were pending. Its
constitutionality was deliberately affirmed by the
courts of law ; and in a report made by a committee
of congress. It was denied by a considerable number
of the states ; but affirmed by a majority. It became
one of the most prominent points of attack upon the
existing administration ; and the appeal thus made was,
probably, more successful with the people, and more
consonant with the feelings of the times, than any other
made upon that occasion. The act, being hniited to
a short period, expired by its own limitation, in March,
1801 ; and has never been renewed. It has continu-
ed, down to this very day, to be a theme of reproach
with many of those, who have since succeeded to
power.^
1 Act of UthJuly, 1798, ch.91.
2 The learned reader will find the subject discussed at large in nnany
of the pamphlets of that day, and especially in the Virginia Report, and
Resolutions of the Virginia Legislature, in December, 1798, and Janu-
ary, 1800; in the Report of a Committee of congress on the Alien and
Sedition laws, on the 25th of February, 1799 ; in the Resolutions of the
legislatures of Massachusetts and Kentucky, in 1799; in Bayard's
Speech on the Judiciary act, in 1802 ; in Addison's charges to the grand
jury, in Pennsylvania, printed with his Reports; in 2 Tucker's Black.
Comm. App. note G. p. 11 to 30. It is surprising, with what facility men
CH. XLIV.] RIGHT OF PETITION. 745
^ 1886. The remaining clause secures " the right of
" the people peaceably to assemble and to petition the
"government ibr a redress of grievances."
§ 1887. This would seem unnecessary to be ex-
pressly provided for in a repubhcan government, since
it results from the very nature of its structure and
institutions. It is impossible, that it could be practically
denied, until the spirit of liberty had wholly disappear-
ed, and the people had become so servile and debased,
as to be unfit to exercise any of the privileges of
freemen.^
^ 1888. The provision was probably borrowed from
the declaration of rights in England, on the revolution
of 1688, in which the right to petition the king for a
redress of grievances was insisted on ; and the right to
petition parliament in the like manner has been pro-
vided for, and guarded by statutes passed before, as
well as since that period.^ Mr. Tucker has indulged
himself in a disparaging criticism upon the phraseology
of this clause, as savouring too much of that style of
condescension, in which favours are supposed to be
glide into the opinion, that a measure is universally deemed unconsti-
tutional, because it is so in their own opinion, especially if it has be-
come unpopular. It has been often asserted, by public men, as the uni-
versal sense of the nation, that this act was unconstitutional ; and that
opinion has been promulgated recently, with much emphasis, by distin-
guished statesmen ; as we have already had occasion to notice. What
the state of public and professional opinion on this subject now is, it is,
perhaps, difficult to determine. But it is well know^n, that the opinions
then deliberately given by many professional men, and judges, and le-
gislatures, in favour of the constitutionality of the law, have never been
retracted. See Vol. III. § 1288, 1289, and note.
1 See 2 Lloyd's Debates, 197, 198, 199.
2 See J Black. Comm. 143; 5 Cobbett's Parl'y. Hist. p. 109, 110;
Rawle on Const, ch. 10, p. 124 j 3 Amcr. Museum, 420; 2 Kent's Comm.
Lect. 24, p. 7, 8.
VOL. III. 94
746 CONSTITUTION OF THE U. STATES. [bOOK III.
granted.^ But this seems to be quite overstrained;
since it speaks the voice of the people in the language
of prohibition, and not in that of affirmance of a right,
supposed to be unquestionable, and inherent.
§ 1889. The next amendment is : "A well regulated
" militia being necessary to the security of a free state,
"the right of the people to keep and bear arms shall
" not be infringed."
§ 1890. The importance of this article will scarcely
be doubted by any persons, who have duly reflected
upon the subject. The militia is the natural defence
of a free country against sudden foreign invasions, do-
mestic insurrections, and domestic usurpations of power
by rulers. It is against sound policy for a free people
to keep up large military establishments and standing
armies in time of peace, both from the enormous ex-
penses, with which they are attended, and the facile
means, which they afford to ambitious and unprincipled
rulers, to subvert the government, or trample upon the
rights of the people. The right of the citizens to keep
and bear arms has justly been considered, as the palla-
dium of the hberties of a republic ; since it offers a strong
moral check against the usurpation and arbitrary power
of rulers ; and will generally, even if these are successful
in the first instance, enable the people to resist and
triumph over them.^ And yet, though this truth would
seem so clear, and the importance of a w ell regulated
militia w^ould seem so undeniable, it cannot be disguis-
ed, that among the American people there is a growing
indiff'erence to any system of militia discipline, and a
strong disposition, from a sense of its burthens, to be rid
1 1 Tucker's Black. Comm. App. 299.
2 I Tucker's Black. Comm. App. 300; Rawle onCongt.ch. 10, p. 125
2 Lloyd's Debates, 219, 220.
CH. XLIV.] QUARTERING SOLDIERS. 747
of all regulations. How it is practicable to keep the
people duly armed without some organization, it is difTi-
cult to see. There is certainly no small danger, that
indifference may lead to disgust, and disgust to con-
tempt ; and thus gradually undermine all the protection
intended by this clause of our national bill of rights.^
§ 1891. A similar provision in favour of protestants
(for to them it is confmed) is to be found in the bill of
rights of 1688, it being declared, "that the subjects,
which are protestants, may have arms for their defence
suitable to their condition, and as allowed by law." ^
But mider various pretences the effect of this provis-
ion has been greatly narrowed ; and it is at present in
England more nominal than real, as a defensive privi-
lege.^
§ 1892. The next amendment is: "No soldier shall
" in time of peace be quartered in any house, without
" the consent of the owner, nor in time of war, but in a
" manner to be prescribed by law."
§ 1893. This provision speaks for itself. Its plain
object is to secure the perfect enjoyment of that great
right of the common law, that a man's house shall be
his own casde, privileged against all civil and mihtary in-
trusion. The billetting of soldiers in time of peace
upon the people has been a common resort of arbitrary
princes, and is full of inconvenience and peril. In the
1 It would be well for Americans to reflect upon the passage in Ta-
citus, (Hist. IV. ch. 74): " Mtm neque quies sine annis, neque anna sine
stipendlis, neque stiptndia sine tnbutis, haberi queunC Is there 'any
escape from a large standincr army, but in a well disciplined militia?
There is much wholesome instruction on this subject in 1 Black. Comm.
ch. 13, p. 408 to 417.
2 5 Cobbett's Pari. Hist. p. 110 ; 1 Black. Comm. 143, 144.
3 1 Tucker's Black. Comm. App. 300.
748 CONSTITUTION OF THE U. STATES. [bOOK III.
petition of right (4 Charles I.), it was declared by
parliament to be a great grievance.^
§ 1894. The next amendment is : " The right of the
"people to be secure in their persons, houses, papers,
" and effects against unreasonable searches and seizures
" shall not be violated ; and no warrants shall issue, but
" upon probable cause, supported by oath or affirma-
" tion, and particularly describing the place to be search-
"ed, and the person or things to be seized."
^ 1895. This provision seems indispensable to the
full enjoyment of the rights of personal security, per-
sonal liberty, and private property. It is litde more
than the affirmance of a great constitutional doctrine of
the common lavv\ And its introduction into the amend-
ments was doubtless occasioned by the strong sensi-
bility excited, both in England and America, upon the
subject of general warrants almost upon the eve of the
American Revolution. Although special warrants upon
complaints under oath, stating the crime, and the party
by name, against whom the accusation is made, are the
only legal warrants, upon which an arrest can be made
according to the law of England;^ yet a practice had
obtained in the secretaries' office ever since the resto-
ration, (grounded on some clauses in the acts for regu-
lating the press,) of issuing general warrants to take
up, without naming any persons in particular, the authors,
printers, and publishers of such obscene, or seditious
libels, as were particularly specified in the warrant.
When these acts expired, in 1694, the same practice
was continued in every reign, and under every admin-
istration, except the four last years of Queen Anne's
1 -2 Cobbett's Pari. Hist. 375; Ravvlc on Const, ch. 10, p. 126, 127;
1 Tucker's Black. Comm. App. 300, 301 ; 2 Lloyd's Debates, 223.
2 And see Ex parte Burford, 3 Crancli, 447 ; 2 Lloyd's Deb. 226,227.
CH. XLIV.] GENERAL WARRANTS. 749
reign, down to the year 1763. The ,2;cneral warrants,
so issued, in general terms authori/ed tlie oOicers to
apprehend all persons suspected, without naming, or
describing any person in special. In the year 1763,
the legality of these general warrants was brought be-
fore the King's Bench for solemn decision ; and they
were adjudged to be illegal, and void for uncertainty.^
1 Money v. Leach, 3 Burr, 1743 ; 4 Black. Comm. 291, 292, and note
ibid. See also 15 Hansard's Pari. Hist. 1398 to 1418, (17G4;; Bell v.
Clapp, 10 John. R. 263 ; Sailly v. Smith, 11 John. R. 500; 1 Tucker's
Black. Comm. App. 301; Rawle on Const, cli. 10, p. 127. — It was
on account of a supposed repugnance to this article, that a vehement
opposition was made to the alien act of 1798, ch. 75, which authorized
the president to order all such aliens, as he should judge dangerous to
the peace and safety of the United States, or have reasonable grounds
to suspect of any treasonable, or secret machinations against the gov-
ernment to depart out of the United States ; and in case of disobedience,
punished the refusal with imprisonment. That law having long since
passed away, it is not my design to enter upon the grounds, upon which
its constitutionality was asserted or denied. But the learned reader will
find ample information on the subject in the report of a committee of
congress, on the petitions for the repeal of the alien and sedition laws,
25th of February, 1799; the report and resolutions of the Virginia
legislature of 7th of January, 1800; Judge Addison's charges to the
grand jury in the Appendix to his reports : and 1 Tucker's Black. Comm.
App. 301 to 304 ; Id. 30G. See also Vol. III. § 1288, 1289, and note.
Mr. Jefferson has entered into an elaborate defence of the right and
duty of public officers to disregard, in certain cases, the injunctions of
tlie law, in a letter addressed to Mr. Colvin in 1810.^ On that occa-
sion, he justified a very gross violation of this very article by General
Wilkinson, (if, indeed, he did not authorize it,) in the seizure of two
American citizens by military force, on account of supposed treasona-
ble conspiracies against the United States, and transporting them,
without any warrant, or order of any civil authority, from New-Orleans
to Washington for trial. They were both discharged from custody at
Washington by the Supreme Court, upon a full hearing of the case.f
Mr. Jefferson reasons out the whole case, and assumes, without the
slightest hesitation, the positive guilt of the parties. His language
is: "Under these circumstances, was he (General Wilkinson) justi-
fiable (1.) in seizing notorious conspirators.^ On this there can be but
* 4 Jefferson's Corrcsp. 149, 151.
t Ex parte Bollman ^ Swartoiit, 4 Cranch, 75 to 136.
750 CONSTITUTION OF THE U. STATES. [bOOK III.
A warrant, and the complaint, on which the same is
founded, to be legal, must not only state the name of the
party, but also the time, and place, and nature of the
offence with reasonable certainty.^
§ 1896. The next amendment is: "Excessive bail
" shall not be required ; nor excessive fines imposed ;
"nor cruel and unusual punishments inflicted." This
is an exact transcript of a clause in the bill of rights,
framed at the revolution of 1688.^ The provision
would seem to be wholly unnecessary in a free gov-
ernment, since it is scarcely possible, that any de-
partment of such a government should authorize, or
justify such atrocious conduct.^ It was, however,
adopted, as an admonition to all departments of the
national government, to warn them against such vio-
lent proceedings, as had taken place in England in the
arbitrary reigns of some of the Stuarts.^ In those
two opinions; one, of the guilty, and their accomplices; the other, that
of all honest men! ! ! (2.) In sending them to the seat of g-overnment,
when the written law g-ave them a right to trial by jury ? The dan-
ger of their rescue, of their continuing their machinations, the tardiness
and iveakness of the law, apathj of the judges, active patronage of the
whole tribe of lawyers, unknoivn disposition of the juries, an hourly ex-
pectation of the enemy, salvation of the city, and of the Union itself,
which would have been convulsed to its centre, had that conspiracy
succeeded ; all these constituted a law of necessity and self-preservation ;
and rendered the snlus popidi supreme over the avf.itten law ! ! ! " Thus,
the constitution is to be wholly disregarded, because Mr. Jefferson has no
confidence in judges, or juries, or laws. He first assumes the guilt of
the parties, and tlien denounces every person connected with the courts
of justice, as unworthy of trust. Without any warrant or lawful au-
thority, citizens arc dragged from their homes under military force, and
exposed to the perils of a long voyage, against the plain language of
this very article ; and yet three years after they arc discharged by the
Supreme Court, Mr. Jefferson uses this strong language.
1 See Ex parte Burford, *J Cranch, 447.
2 5 Cobbctt's Pari. Hist. 110.
3 2 Elliot's Debates, 345.
4 See 2 Lloyd's Debates, 225, 226 : 3 Elliot's Debates, 345.
CH. XLIV.] NON-ENUMERATED POWERS. 751
times, a demand of excessive bail was often made against
persons, who were odious to the court, and its favourites;
and on failing to procure it, they were committed to
prison.^ Enormous fmes and amercements were also
sometimes imposed, and cruel and vindictive punish-
ments inllicted. Upon this subject Mr. Justice Black-
stone has wisely remarked, that sanguinary laws are a
bad symptom of the distemper of any state, or at least
of its weak constitution. The laws of the Roman kings,
and the twelve tables of the Decemviri, were full of
cruel punishments ; the Porcian law, which exempted
all citizens from sentence of death, silently abrogated
them all. In this period the republic nourished. Under
the emperors severe laws were revived, and then the
empire fell.^
§ 1897. It has been held in the state courts, (and the
point does not seem ever to have arisen in the courts
of the United States,) that this clause does not apply
to punishments inflicted in a state court for a crime
against such state ; but that the prohibition is addressed
solely tu the national government, and operates, as a
restriction upon its powers.^
§ 1898. The next amendment is : " The enumeration
" in the constitution of certain rights shall not be con-
" strued to deny, or disparage others retained by the
"people." This clause was manifestly introduced to
prevent any perverse, or ingenious misapplication of the
well known maxim, that an affirmation in particular cases
implies a negation in all others ; and v converso, that
1 Rawle on Const, ch. 10, p. 130, 131.
2 4 Black. Comm. \7. See De Lolme, B. 2, ch. 16, p. 3G6, 367, 368, 360.
3 See Barker v. The People, 3 Cowen's R. 686 ; James v. Comvion-
loeallh, 12 Sergeant and Rawle's R. 220. See Barron v. Mayor of Bal-
timore, 7 VeicYs'sR.{183S.)
752 CONSTITUTION OF THE U. STATES. [bOOK III.
a negation in particular cases implies an affirmation in
all others.^ The maxim, rightly understood, is perfectly
sound and safe ; but it has often been strangely forced
from its natural meaning into the support of the most
dangerous political heresies. The amendment was
undoubtedly suggested by the reasoning of the Feder-
alist on the subject of a general bill of rights. ^
§ 1899. The next and last amendment is: "The
"powers not delegated to the United States by the
"constitution, nor prohibited by it to the states, are
" reserved to the states respectively, or to the people."
^ 1900. This amendment is a mere affirmation of
what, upon any just reasoning, is a necessary rule of
interpreting the constitution. Being an instrument
of Hmited and enumerated powers, it follows irresisti-
bly, that what is not conferred, is withheld, and belongs
to the state authorities, if invested by their constitutions
of government respectively in them ; and if not so in-
vested, it is retained by the people, as a part of their
residuary sovereignty.^ When this amendment Avas
before congress, a proposition was moved, to insert the
w^ord " expressly " before " delegated," so as to read
"the powers not expressly delegated to the United
States by the constitution," &c. On that occasion it
was remarked, that it is impossible to confine a gov-
ernment to the exercise of express powers. There
must necessarily be admitted powers by implication,
unless the constitution descended to the most minute
details.^ It is a general principle, that all corporate
1 See ante, Vol. I. § 448 ; The Federalist, No. 83.
2 The Federalist, No. 84; ante, Vol. III. § 1852 to 1857; 1 Lloyd's
Debates, 433, 437 ; 1 Tucker's Black. Comm. App. 307, 308.
y See 1 Tucker's Black. Comm. App. 307, 308, 309.
4 Mr. Madison added, tliat he remembered the word " expressly " had
been moved in the Virginia Convention by the opponents to the ratifi-
CH. XLIV.] POWERS NOT DELEGATED. 753
bodies possess all powers incident to a corporate
capacity, without being absolutely expressed. The
motion was accordingly negatived.^ Indeed, one of the
great defects of the confederation was, (as we have
already seen,) that it contained a clause, prohibiting the
exercise of any power, jurisdiction, or right, not ex-
pressly delegated.^ The consequence was, that con-
gress were crippled at every step of their progress ; and
were often compelled by the very necessities of the
times to usurp powers, which they did not constitu-
tionally possess ; and thus, in effect, to break down all
the great barriers against tyranny and oppression.^
^ 1901. It is plain, therefore, that it could not have
been the intention of the framers of this amendment to
give it effect, as an abridgment of any of the powers
granted under the constitution, whether they are ex-
press or imphed, direct or incidental. Its sole design
is to exclude any interpretation, by which other powers
should be assumed beyond those, which are granted.
All that are granted in the original instrument, wheth-
er express or implied, whether direct or incidental, are
left in their original state. All powers not delegated,
(not all powers not expressly delegated,) and not pro-
hibited, are reserved.^ The attempts, then, which
have been made from time to time, to force upon this
language an abridging, or restrictive influence, are utterly
unfounded in any just rules of interpreting the words,
cation; and after a full and fair discussion, was given up by them, and
the system allowed to retain its present form. 2 Lloyd's Debates, •2'34.
1 2 Lloyd's Deb. 243, 244 ; McCulloh v. Manjland, 4 Wlieat. R. 407 ;
Martin v. Hunter, 1 Wheat. R. 325 ; Houston v. Moore, 5 Wheat. R. 49 ;
Anderson v. Dunn, 6 Wheat. R. 22,5, 22G.
2 Confederation, Article 2, ante Vol. L § 230.
3 The Federalist, No. 33, 38, 42, 44; ante Vol.L § 269.
4 McCulloh V. Maryland, 4 Wheat. R. 40G, 407 ; ante Vol. L § 433.
VOL. III. 95
754 CONSTITUTION OF THE U. STATES. [bOOK III.
or the sense of the instrument. Stripped of the in-
genious disguises, in which they are clothed, they are
neither more nor less, than attempts to foist into the
text the word " expressly ; " to qualify, what is gen-
eral, and obscure, what is clear, and defined. They
make the sense of the passage bend to the wishes and
prejudices of the interpreter ; and employ criticism to
support a theory, and not to guide it. One should sup-
pose, if the history of the human mind did not furnish
abundant proof to the contrary, that no reasonable man
would contend for an interpretation founded neither in
the letter, nor in the spirit of an instrument. Where is
controversy to end, if we desert both the letter and the
spirit? What is to become of constitutions of govern-
ment, if they are to rest, not upon the plain import of
their words, but upon conjectural enlargements and
restrictions, to suit the temporary passions and inter-
ests of the day 1 Let us never forget, that our consti-
tutions of government are solemn instruments, address-
ed to the common sense of the people and designed to
fix, and perpetuate their rights and their liberties. They
are not to be frittered away to please the demagogues
of the day. They are not to be violated to gratify the
ambition of political leaders. They are to speak in the
same voice now, and for ever. They are of no man's
private interpretation. They are ordained by the
will of the people ; and can be changed only by
the sovereign command of the people.
^ 1902. It has been justly remarked, that the erec-
tion of a new government, whatever care or wisdom
may distinguish the work, cannot fail to originate ques-
tions of intricacy and nicety ; and these may in a par-
ticular manner be expected to How from the establish-
ment of a constitution, founded upon the total, or
CH. XLIV.] POWERS NOT DELEGATED. 766
partial incorporation of a number of distinct sovereign-
ties. Time alone can mature and perfect so compound
a system ; liquidate the meaning of all the parts ; and
adjust them to each other in a harmonious and consis-
tent whole.^
1 The Federalist, No. 82. See also Mr. Hume's Essays, Vol. I. Essay
on the Rise of Arts and Sciences.
756 CONSTITUTION OF THE U. STATES. [bOOK III.
CHAPTER XLY.
COiVCLUDIIVG REMARKS.
§ 1903. We have now reviewed all the provisions
of the original constitution of the United States, and all
the amendments, which have been incorporated into it.
And, here, the task originally proposed in these Com-
mentaries is brought to a close. Many reflections
naturally crowd upon the mind at such a moment ;
many grateful recollections of the past ; and many anx-
ious thoughts of the future. The past is secure. It is
unalterable. The seal of eternity is upon it. The
wisdom, which it has displayed, and the blessings,
which it has bestowed, cannot be obscured ; neither
can they be debased by human folly, or human infirmi-
ty. The future is that, which may well awaken the
most earnest solicitude, both for the virtue and the per-
manence of our republic. The fate of other repubhcs,
their rise, their progress, their decline, and their fall,
are written but too legibly on the pages of history, if
indeed they were not continually before us in the start-
ling fragments of their ruins. They have perished ;
and perished by their own hands. Prosperity has
enervated them, corruption has debased them, and a
venal populace has consummated their destruction.
Alternately the prey of military chieftains at home,
and of ambitious invaders from abroad, they have been
sometimes cheated out of their liberties by servile dem-
agogues ; sometimes betrayed into a surrender of them
by false patriots ; and sometimes they have willingly
sold them for a price to the despot, who has bidden
CH. XLV.] COJVCLUDmG REMARKS. 757
highest for his victims. They have disregarded the
warning voice of their best statesmen ; and have perse-
cuted, and driven from office their truest friends. They
have listened to the fawning sycophant, and the base
calumniator of the wise and the good. They have rev-
erenced power more in its high abuses and summary
movements, than in its calm and constitutional energy,
when it dispensed blessings with an unseen, but liberal
hand. They have surrendered to faction, what belong-
ed to the country. Patronage and party, the triumph of
a leader, and the discontents of a day, have outweighed
all solid principles and institutions of government.
Such are the melancholy lessons of the past history of
republics down to our own.
^ 1904. It is not my design to detain the reader by
any elaborate reflections addressed to his judgment,
either by way of admonition or of encouragement. But
it may not be wholly without use to glance at one or two
considerations, upon which our meditations cannot be
too frequently indulged.
§ 1905. In the first place, it cannot escape our no-
tice, how exceedingly difficult it is to setde the founda-
tions of any government upon principles, which do not
admit of controversy or question. The very elements,
out of which it is to be built, are susceptible of infinite
modifications ; and theory too often deludes us by the
attractive simpHcity of its plans, and imagination by the
visionary perfection of its speculations. In theory, a
government may promise the most perfect harmony of
operations in all its various combinations. In practice,
the whole machinery may be perpetually retarded, or
thrown out of order by accidental mal-adjustments. In
theory, a government may seem deficient in unity of
design and symmetry of parts ; and yet, in practice, it
758 CONSTITUTION OF THE U. STATES. [bOOK III.
may work with astonishing accuracy and force for the
general welfare. Whatever, then, has been found to
work well in experience, should be rarely hazarded
upon conjectural improvements. Time, and long and
steady operation are indispensable to the perfection of
all social institutions. To be of any value they must
become cemented with the habits, the feeUngs, and the
pursuits of the people. Every change discomposes for
a while the whole arrangements of the system. What
is safe is not always expedient ; what is new is often
pregnant with unforeseen evils, and imaginary good.
^ 1906. In the next place, the slightest attention to
the history of the national constitution must satisfy
every reflecting mind, how many difficulties attended
its formation and adoption, from real or imaginary differ-
ences of interests, sectional feelings, and local institu-
tions. It is an attempt to create a national sovereignty,
and yet to preserve the state sovereignties ; though it
is impossible to assign definite boundaries in every case
to the powers of each. The influence of the disturbing
causes, which, more than once in the convention, were
on the point of breaking up the Union, have since im-
measurably increased in concentration and vigour. The
very inequalities of a government, confessedly founded
in a compromise, were then felt with a strong sensibility ;
and every new source of discontent, whether accidental
or permanent, has since added increased activity to
the painful sense of these inequalities. The North
cannot but perceive, that it has yielded to the South a
superiority of representatives, already amounting to
twenty-five, beyond its due proportion ; and the South
imagines, that, with all this preponderance in represen-
tation, the other parts of the Union enjoy a more per-
fect protection of their interests, than her own. The
CH. XLV.] CONCLUDING REMARKS. 759
West feels her growing power and weight in the
Union ; and the Atlantic states begin to learn, that the
sceptre must one day depart from them. If, under these
circumstances, the Union should once be broken up,
it is impossible, that a new constitution should ever be
formed, embracing the whole Territor}'. We shall be
divided into several nations or confederacies, rivals in
power and interest, too proud to brook injury, and too
close to make retaliation distant or ineffectual. Our very
animosities will, like those of all other kindred nations,
become more deadly, because our lineage, laws, and
language are the same. Let the history of the Grecian
and Italian republics warn us of our dangers. The
national constitution is our last, and our only security.
United we stand ; divided we fall.
§ 1907. If these Commentaries shall but inspire in
the rising generation a more ardent love of their coun-
try, an unquenchable thirst for liberty, and a profound
reverence for the constitution and the Union, then they
will have accomplished all, that their author ought to
desire. Let the American youth never forget, that
they possess a noble inheritance, bought by the toils,
and sufferings, and blood of their ancestors ; and capa-
ble, if wisely improved, and faithfully guarded, of trans-
mitting to their latest posterity all the substantial bless-
ings of life, the peaceful enjoyment of liberty, property,
religion, and independence. The structure has been
erected by architects of consummate skill and fidehty ;
its foundations are solid ; its compartments are beauti-
ful, as well as useful ; its arrangements are full of wis-
dom and order ; and its defences are impregnable from
without. It has been reared for immortality, if the work
of man may justly aspire to such a tide. It may, never-
theless, perish in an hour by the folly, or corruption, or
760 CONSTITUTION OF THE U. STATES, [b. III. CH. XLV.
negligence of its only keepers, the people. Republics
are created by the virtue, public spirit, and intelligence
of the citizens. They fall, when the wise are banished
from the public councils, because they dare to be hon-
est, and the profligate are rewarded, because they
flatter the people, in order to betray them.
INDEX.
A.
ACADEMY, Military ..... iii. 155
ACCOUNTS, Public, to be published . . iii. 213, 214
ACCUSATION, Self, Criminals not bound to . . iii. 6ZG - GGO
ADJOURNMENT of Congress, by whom . . iii. 293, 294, 297
of each House . . . ii. 303-330
ADMIRALTY, Jurisdiction. (.See Judiciary) . iii. 525-536
ADMISSION of new States into the Union . iii. 184-192
ALIENS, who iire iii. 570, 571
suits by, and against .... iii. 568-572
ALIEN ACT, whether constitutional . . iii. 104-166
AMBASSADORS, appointment of . iii. 354, 372, 373, 380
Receiving of . . . iii. 412, 414
Dismission of . . . iii. 418, 419
Protection, and rights of . iii. 519-525
Suits by and against . . iii. 519-525
AMENDMENTS OF CONSTITUTION, how made iii. 685-690
APPEAL, Nature and Effect of . . . iii. 626-651
APPELLATE JURISDICTION. {See Judiciary) iii. 572, 576, 626 - 651
APPOINTMENTS, to office by president, and senate iii. 372-386
By congress, and heads of
departments . . iii. 354, 382 - 386
When discretionary in con-
gress . . . iii. 354, 382-386
When complete . . iii. 397-408
When the party is in office . iii. 408, 409
In case of vacancies . . iii. 409-412
APPORTIONMENT, of Representatives ii. 103 - 114. 137-158
of Direct Taxes . . ii. 420, 462-465
APPROPRIATIONS, of Money . . . iii. 64, 213, 214
for Internal Improvements iii. 149-153
ARMS, right to bear ..... iii. 746
ARMY AND NAVY, power to create and regulate iii. 64-80
ARREST of Members of Congress . . . iii. 318 -325
ARTS AND SCIENCE, Promotion of . . iii. 48-52
ATTAINDER, Prohibition of Bills of, by congress iii. 209-211
by States .... iii. 238, 239
Effect of, in Treason . . iii. 169-173
VOL.111. 96
762
INDEX.
AUTHORS, Copyright of iii. 48-52
AYES AND NOES, Call of, in congress . . ii. 301-303
B.
BAIL, excessive. Prohibition of . . . iii. 750, 751
BANK OF UNITED STATES, Constitutionality of iii. 127 - 149
States cannot tax . . . ii. 486-501
BANKRUPTCY, Power of congress over . . iii. 4-15
BILL OF RIGHTS, Propriety of . . . iii. 713 - 722
BILLS OF ATTAINDER, Prohibition of by congress iii. 209 - 211
by States iii. 217, 238
BILLS OF CREDIT, Prohibition of . . iii. 220-237
What are . . . iii. 227-237
BILLS OF EXCHANGE, Purchase of, by U. States . iii. 153
BORROW MONEY, Power of congress to . ii. 503, 504
CANALS AND ROADS, Power of congress as to ii. 149-153
CAPITATION TAX, Power to lay . . ii. 424 - 458, 462
CAPTURES, Regulation of .... iii. .59-64
CAROLINAS, Origin and Settlement of . . i. 117-128
CASES, What are within the judicial powder . iii. 499-519
CENSUS, when to be taken . . . ii. 103, 114-118
CESSIONS, for Seat of Government . . iii. 101 - 103
for Forts, Arsenals, &c. . . . iii. 103-108
of Foreign Territory . . . iii. 156-161
CHARTER Governments, wdiat . . . i. 145, 146
CHARTERS, Whether contracts, protected by con-
stitution . . . . iii. 258-264
CITIZENS, who are iii. 564-567
Privileges and Immunities of, in each
State .... iii. 673 - 675
COINAGE, Power of congress, over . . . iii. 16-22
Counterfeiting .... iii. 21
Prohibition upon the States . iii. 217, 219, 220
COLONIES, AMERICAN, Origin and Settle-
ment of . . . i. 1-132
Title of Territory . i. 1 - 20
General Review of . i. 132-183
Common Law in . i. 132- 141
Governments in . i. 142-147
Rights of . i. 142-165. 171-176
COLONIES, Legislative powers of . . . i. 171, 172
INDEX. 7G3
COLUMBIA, District of .... iii.9G-101
Taxes in ..... iii. 4(12-4^9
Legislation in . . . iii. 102-108
COMMERCE, Power of congress to regulate
(.S-ee Taxes) .... ii. 503-543
Foreign . . ... . ii. 510
Domestic . . . . ii. 510
with Indians . . . ii. 510, 539- 541
Exclusive power in Congress . . ii. 512
Encouragement of Manufactures . iii. 519-538
COMMON LAW IN COLONIES, Introduction of i. 132 - 137, 141
COMMON DEFENCE, Taxes for . ii. 3GG, 3G8, 429, 444, 458
COMPACTS, by States iii. 270, 271
COMPENSATION {See President, Judges) . iii. 337 -339
iii. 490-498
for Property taken for Public uses iii. G5G-661
CONTEMPTS OF CONGRESS, how punishable iii. 298, 305-317
CONTEMPTS OF COURTS, punishable . . iii. G50
CONFEDERATION, Origin and Formation of . i. 209-216
Articles of . . i. 217-223
Decline and Fall of . . i. 224 - 252
CONGRESS, Adjournment of . . . ii. 293, 294, 297
Quorum of . . . . ii. 294, 297
Rules of ii. 298, 299
Ayes and Noes . . . ii. 301-303
Compensation of .... ii. 318-324
Disqualifications of members of . ii. 330-337
Qualifications of Representatives ii. 46, 88 - 103
of Senators . . ii. 204 -- 208
Organization and modes of Proceeding ii. 337 — 365
Division into two Branches . . ii. 26 — 45
House of Representatives . . ii. 46— 172
Senate ii. 173 -280
Elections of .... ii. 280-297
Powers, when exclusive or not . . i. 420— 435
Meetings of .... ii. 280-297
Privileges of .... ii. 297-327
Journals of, to be kept . . ii. 301, 302
Contempts of . . . ii. 298, 305 - 317
Mode of passing laws . ii. 338 - 342, 357 - 365
Impeachments by and before ii. 159 - 171, 214 — 279
Power to Lay Taxes . . ii. 366 - 502
Borrow Money . . ii. 503, 504
764
INDEX.
CONGRESS, Powers Continued.
Regulate Commerce . ii. 504 ~ 543
Naturalization , . iii. 1 — 3
Bankrupt Laws . . . iii. 4-15
Coin Money . . . iii. 16 --20
Weights and Measures . . iii. 20, 21
Counterfeiting Coin . . . iii. 21
Post-offices and Post-roads . iii. 22 — 47
Promotion of Science and Arts iii. 48 — 52
Piracy and Felonies on the
High Seas . . iii. 52 - 53
Offences against the Law of
Nations . . . iii. 52-58
War and Captures . iii. 59 — G4
Army and Navy . . iii. 64 — 80
Militia . . . iii. 81-95
Seat of Government . . iii. 96 - 101
Forts, Arsenals, Dock-
yards, &c. . . iii. 101 - 108
Incidental Powers . . iii. 109-126
Resulting Powers . iii. Ill — 124
Bank of United States . iii. ]27-148
Vacancy in Presidency . iii. 334 - 337
K Establishment of Judiciary iii. 449 — 456
648-650
Appropriations of Money . . iii. 64
Internal Improvements iii. 149— 153
Embargoes . ii. 509. iii. 161 - 164
Alien and Sedition Act . iii. 164 ~ 166
Treason, punishment of iii. 169— 173
State Records, proof and
effect of . . iii. 174 - 183
Admission of new States iii. 184 - 192
Government of Territories iii. 193 - 201
CONNECTICUT, Origin and Settlement of . . i. 72- 80
CONQUEST, Laws of, as to Colonics . . . . i. 133
CONSCIENCE, Rights of . . . iii. 702-705
CONSTITUTION OF UNITED STATES
Origin and Adoption of . . i. 252 — 258
General objections to . . i. 259 — 278
Whether a Compact or League . i. 279 - 343
Formed by the People, and not
by States . . i. 318 - 322, 448
Final Interpreter, who is . i. 344-382
INDEX.
765
CONSTITUTION OF U. STATES, Continued.
Rules of Interpretation of
Preamble, Exposition of
Division of powers, Lej.nsla-
tivc, Executive, Judicial
Legislative power, Division in- ^
to two Branches
The House of Representatives
{See Representatives.)
The Senate. (See Senate.)
Mode of passing Laws ii. 338
President's negative
Powers of congress. {See
Congress.) .
Executive department. {See
President.)
Judicial department. (.See
Judiciary.)
Supremacy of Constitution,
Treaties and Laws
CONSTRUCTION, Rules of, — of Constitution .
CONSULS, Appointment of .
Suits, by and against .
CONTEMPTS OF CONGRESS, how punishable
whether pardonable
by President
CONTEMPTS OF COURTS,
CONTRACTS, Impairing, prohibition of
of the United States, how interpreted
CONVEYANCES, of Land under Colonial
Governments
COPYRIGHT, of Authors . . • •
CORPORATION, composed of citizens, when
entitled to sue
Foreign, when it may sue
CORRUPTION of Blood, in Treason
COUNSEL, Right to, in criminal cases
COURTS. {See Judiciary.) .
State, appellate jurisdiction, over
CRIMES, how prosecuted and tried
CRIMINALS, Fugitive
not bound to accuse themselves
Trial of
not to be twice tried
i. 383
i. 443
442
• 494
i--2G
ii. 2G-45
ii. 4G--
. ii. 173--
-342, 357--
ii. 343 - 350,
ii. 306 to iii.
172
280
305
421
217
iii. 277-424
iii. 425 - 450
iii. 093 -
i. 383"
iii. 354,
iii. 519-
ii. 298, 305 -
iii. 353,
iii.
iii. 240-
iii. 200,
i. 100,
iii. 48
701
442
372
525
317
354
050
208
201
101
-52
ni
iii.
iii. 109-
iii. 004 -
. iii. 425 ~
iii. 572, 570 —
iii. 052 -
iii. 075 —
iii. 050 —
iii. 052-
iii. 050 —
560
571
173
666
456
012
656
677
660
656
659
760
INDEX,
CROWN, Rights and Prerogatives of, in the Colonies iii. 132 -- 137
D.
DEBTS in Colonics, a charge on land . . . i. 167, 168
Revolutionary, provided for . . . iii. 69 J, 692
of United States, priority of payment . iii. 153, 154
DEBT, PUBLIC, stock not taxable by a State . iii. 495 -- 501
Old, declared valid . . iii. 691,692
DEFENCE, Common, power to tax for . . ^ iii. 366-- 502
DELAWARE, Origin and Settlement of . . i. 115-117
DESCENT, Rules of, in Colonies . . . i. 165, 166
DIRECT TAXES, W hat are . . ii. 424 - 428, 462 - 469
How apportioned . . ii. 103, 420, 424
DISCOVERY, Right of, to America . . . i. 3-20
Effect of, on Indian Title . . i. 132-138
DISQUALIFICATION and Disability to hold office iii. 330 - 237
of Electors . . . iii. 329, 330
DISTRICT of Columbia .... iii. 96 - 101
Taxes on ... . iii. 462 - 469
Legislation in . . . . iii. 102 - 108
DIVISION of Legislative, Executive and Judicial
powers. Reasons for . . . ii. 1 — 26
of Legislative, Reasons for . . . ii. 26 — 45
DUTIES, Power to lay .... ii. 367-440
Meaning of . . . . ii. 419, 421, 423
to be uniform . . . ii. 367, 419-428
Prohibitions on States . . ii. 471, 486. iii. 270
E.
ELECTIONS of Representatives . . ii. 46 -88, 280-292
of Senators . . ii. 173 - 203, 280 - 292
of President and Vice-President . iii. 311 — 330
ELECTORS of President and Vice-President . iii. 31 1 - 330
Time of choice of . . . iii. 330 - 332
of Representatives and Senators
(.S'ee Elections.) . . ii. 46 - 88, 280 - 292
Disqualifications of . . . ii. 329,330
EMBARGO, power to lay . , . ii. 509. iii. 161 - 163
What constitutional . . . iii. 164 - 166
ERROR, Writ of, Nature and Effect of . . iii. 626-629
EXCISES, What are. (5'ee Duties.) . . ii. 367, 423, 424
EXCLUSIVE, what powers of congress are, or not i. 420 - 435
EXECUTIVE department, Organization of . . iii. 277 -- 280
INDEX. 707
EXECUTIVE, Unity of, Reasons for . . iii. 281 --291
Duration of office . . iii. 278,"291 -- 302
Rc-eli.<ribilitv. {See President.) iii. 302 -- 308
EXPORTS, Proliibition of Duties on . . ii. 422,4r,!)- 471
EX POST FACTO LAWS, prohibition of, by congress iii. 212, 213
by a state iii. 238, 239
F.
FELONIES, What are iii. 52-5G
On High Seas .... iii. 52 -56
FINES and FORFEITURES, Pardon of by President iii. 1:51, SrA
Prohibition of, excessive iii. 750 — 751
FLORIDA, Purchase of ... . iii. IGO, 161
FREEDOM of tlie Press .... iii. 722, 731, 744
of Speech . . . iii. 722, 731, 735
of Religion ..... iii. 722
FUGITIVE, Criminals .... iii. 675-677
Slaves .... iii. 675 - 677
G.
GENERAL WELFARE, Power to Tax for ii. 366, 368, 444, 458, 502
GEORGIA, Origin and Settlement of . . . iii. 128- 131
GOVERNMENT, Republican form of, guarantied iii. 679 - 684
GRAND JURY, in Crimes .... iii. 655-659
GUARANTY of Republican form of Government . iii. 679 - 684
H.
HABEAS CORPUS WRIT, Privilege of . iii. 206-209
Suspension of . . iii. 206 - 209
HIGH SEAS, what is .... . iii. 52 - 58
Crimes on .... iii. 52-58
HOUSE OF REPRESENTATIVES.
(iSee Represeixtatives.) .... ii. 46-172
I.
IMPAIRING CONTRACTS, Prohibition of . iii. 240 - 268
IMPEACHMENT, Power of, in House of Representa-
tives, ... ii. J 59 -171, 214
Trial of in Senate . . ii. 214-279
of President and Vice-President ii. 247, 255, 278
Proceedings on . . ii. 250, 273 -277
who are liable to . . . ii. 255, 257
for what offences . . ii. 262 - 271
IMPLIED POWERS OF CONGRESS iii. 109- 126, 752, 756
of Courts . . . iii. 650
768
INDEX.
IMPLIED EXEMPTIONS from State Power . . iii. ]25
IMPORTS, a State cannot tax . . . iii. 474-486
IMPOSTS, Meaning of .... ii. 4J9--422
[See DuTiFs.)
INCIDENTAL POWERS OF CONGRESS iii. 109-126,752,756
INDEPENDENCE, Declaration of . . . i. 190--192
INDIANS, Title to Territory, . . i. 7, 132, 135 - 138
Commerce with . . . ii. 510, 539-543
INDICTMENT, when necessary . . . iii. 656-659
INFERIOR OFFICERS, who are in sense of Constitu-
tion . . iii. 382, 3S6, 387
INFORMATION, in Criminal Cases . . . iii. 659
INJUNCTIONS, to or by State Courts . . iii. 624 - 626
to or by United States Courts iii. 624 -- 626
INSOLVENT LAWS, how far constitutional . . iii. 252-256
INSPECTION LAWS, what are . . . ii. 472, 473
INTERNAL IMPROVEMENTS, Power of Congress iii. 149 - 153
[See Appropriatio:n")
INVENTIONS, Patents for . . . . iii. 48-52
J.
JEOPARDY of life or limb, in crimes . . iii. 656 — 659
JOURNALS of each House to be published . . ii. 301, 302
JUDGES, Appointment of . . . . iii. 45(3 457
Tenure of Office . . . iii. 457-489
Duties of, none but Judicial . . . jii. 651
Compensation of .... iii. 490-497
Impeachment of. (.%£ Judiciary.) . . ii. 255, 257
JUDICIARY, Organization and Powers of . . iii. 425-652
Importance of . . . iii, 425 - 436
Appointment of Judges . . iii. 456, 457
Tenure of Office .... iii. 457-489
Compensation of . . . iii. 490-497
Estal)lishment of Courts . . . iii. 437-449
Jurisdiction of Courts . . iii. 499-651
When exclusive or not . iii. 613 - G22
Power of Congress over . iii. 51, 449-456
Whether Congress can vest Power in
State Courts . . . iii. 619-624
Original Jurisdiction . iii. 572-576
Appellate Jurisdic-
tion . iii. 572, 576 - 590, 626 - 651
from State Courts . iii. 576 - 612
Cases, what are . . . iii. 499-519
INDliX.
769
JUDICIARY, Parties in suits . . iii. 49!), 549- 5(K)
when a State a party . . ni. ryVJ-TyCyO
Suits l)y and against Ambassadors . iii. 519 -525
Admiralty Suits .... iii. .'')25-5:}(J
Suits by United States . . iii. .500- 542
by or against States . . iii. 54.3-549
by citizens of different States iii. 54:J, .501 - 504
under grants of different States iii. 54.3, 507, 508
by or against Foreigners or Foreign
States . . . iii. 543, .508 -.571
Trial of Crimes . . . iii- 052 -- O.jO
JURISDICTION OF COURTS OF UNITED
STATES . . . iii. 499-572
Original . . . iii. 572-570
Appellate. [See Judi- .
ciARY.) . ill. 572, 576-012, 020 -- 051
over Cases from State Courts iii. 502, 570-012
Regulation of, by Congress iii. 048 — 050
Removal of Suits from State
■ Courts . . . iii. 008 --Oil
When exclusive, or concurrent iii. 013— 022
As to facts . . . iii. 020 -- 050
By Appeal . . iii. 027 -- 029
By Writ of Error . . iii. 027 -- 029
JURY, TRIAL BY
in Criminal Cases . . iii. 652 -- 050
in Civil Cases . . iii. 028 -- 048
Grand Jury . . . iii. 055 — 659
K.
KING, Rights and Prerogatives of, in Colonies . i. 101 - 170
L.
LANDS PUBLIC, Power of Congress over . iii. 184-191
LAWS OF UNITED STATES, Supremacy of iii. C93-701
LAW OF NATIONS, offences against . . iii. 52-58
LAW OF THE LAND, Meaning of , • iii. 050 - 601
LEGISLATION, when exclusive in Congress. {See
Commerce) .i. 420 - 4.33 ; ii. 420 - 425
in ceded places . . ^. iii. 90 -102
on high seas . . • iii. 50-58
when not exclusive. {See Taxes.) i. 420 - 425, 433
LEGISLATURE. {See Congress, Se.xate, Representatives.)
LETTERS OF MARQUE AND REPRISAL, Power of
Congress , . . . • iii. 59-C4
Prohibition on States to issue iii. 218, 219
VOL. IIL 97
770 INDEX.
LIBERTY of the Press .... iii. 722 - 731, 744
of Speech . . . iii. 722 - 731, 744
in Congress ... ii. 318
LOUISIANA, Purchase of .... iii. 156-160
M.
MAINE, Origin and Settlement of . . . i. 64-71
MANUFACTURES, Power of Congress to encour-
age ... . ii. 429-440,519-538
MARYLAND, Origin and Settlement of . . i. 92-97
MASSACHUSETTS, Origin and Settlement of . . i. 44-63
MEASURES AND WEIGHTS, Power of Congress as to iii. 20, 21
MIGRATION AND IMPORTATION OF SLAVES, iii. 202-206
MILITIA, Power of Congress over . . . iii. 81 - 95
Discipline and Government of . . iii. 83-88
Calling forth by Government . . iii. 88-94
Command of ... . iii. 93 —95
Right to bear arms .... iii. 746, 747
MILITARY ACADEMY iii. 1.55
MINISTERS, PUBLIC, Appointment of . iii. 372, 373
Receiving of, by Executive . . iii. 414 -- 419
Violations of Rights of . . . iii. 522
Right to sue . . . iii. 51 9 --525
MONEY, Coinage of ..... iii. 16-22
Power to borrow ..... iii. 503
Bills, or Revenue Bills . . . ii. 338 - 343
N.
NATIONAL BANK, Constitutionality of . . iii. 127-149
NATURALIZATION, Power of .... iii. 1-3
NAVIGATION, Regulation of . . . iii. 507-510
NAVY AND ARMY, Power to establish , iii. 64-79
Regulation of . . . iii. 79, 80
« NECESSARY AND PROPER," Meaning of, as to pov/ers
of Congress . ii. 109-126
NEGATIVE of President on Laws . . ii. 343 - 356, 421
NEW-ENGLAND, Origin and Settlement of . . i. 34 - 43
NEW-HAMPSHIRE, Origin and Settlement of . . i. 64 - 68
NEW-HAVEN COLONY, Origin and Settlement of . i. 73, 74
NEW-JERSEY, Origin and Settlement of . i. 104- 108
NEW-YORK, Origin and Settlement of . . i. 98-103
NOBILITY, Prohibition of Titles of by Congress . iii. 215, 216
by the States . iii. 269
NORTH CAROLINA, Origin and Settlement of . . i. 1 17 - 127
O.
OATH OF OFFICE, by Officers of United States
INDEX.
771
OATH OF OFFICf:, Conlinucd.
of Senators and Representatives iii. 155, 702
of President . . • iii. 339
(See Impeachment.) . ii. 247, 255, 278
by State Officers . . iii. 702 -- 705
OBLIGATION OF A CONTRACT, what it is . iii. 243, 244
OFFICE, Tenure of, by Judges. [See Judiciary.) iii. 457 -- 48S
by President and Vice-President iii. 278, 291 -- 302
Appointments to. (See Appointmeints.) iii. 354, 372 — 386
Disqualifications to hold . ii. 330 -- 337. iii. 331 -- 334
Whether Commission necessary to . iii. -397 — 408
Foreign, Prohibition to hold . . iii. 215, 216
When Appointee is in . . . iii. 408, 409
OFFICERS, who are inferior in sense of Constitution iii. 382, 386
ORIGINAL JURISDICTION. (See Judiciary.) iii. 572-576
P.
PAPER MONEY, Prohibition of (See Tender.) iii. 220-236
PARDONS AND REPRIEVES, by President iii. 340, 343 - 354
Whether extending to Contempts . . iii. 353
not extending to Impeachments . iii. 340, 351, 353
PARLIAMENT, Powers and Rights of, over Colonies i. 172 - 183
PARTIES TO A SUIT, who are, and when a State iii. 549-560
PATENTS FOR INVENTIONS . . . iii. 48 -52
PENNSYLVANIA, Origin and Settlement of . i. 109-114
PEOPLE, Constitution framed by . . i. 318 -322, 446
PETITION, Right of, .... iii 745, 746
PIRACY, Power to define . . . iii. 52-58
PLANTATIONS AND COLONIES, General Law
Governing ... i. 132-141
PLYMOUTH COLONY, Origin and Settlement of . i. 36 -43
POLL TAXES ..... ii. 444 - 458
POST-OFFICE AND POST-ROADS, Power respecting iii. 22 - 47
POST-MASTER GENERAL, Suits by . . iii. 154
his Patronage an anomaly . iii. 387, 388
POWERS OF CONGRESS, Incidental . . iii. 109 - 126
Express. (See Congress.)
Implied . iii. 109, 126, 752, 759
When exclusive, or not i. 420 — 435
POWERS, reserved to States or People . . iii. 751, 754
PREAMBLE OF CONSTITUTION, Exposition of i. 448 - 494
PRESS, Liberty of the .... iii. 722, 731, 744
PRESENTMENT, what it is .... iii. 657
PRESIDENT, Negative on Laws . . ii. 343 - 355, 421
Mode of Choice of . . iii. 31 1 - 330
Re-eligibility of . . . iii. 302-308
n)i INDEX.
PRESIDENT, Continued.
Duration and Tenure of Office . iii. 278, 291 - 302
Non-election of . . iii. 835, 336, 337
Vacancy of Office of . . iii. 334 - 337
^^^^owers of . . . iii. 340 - 424
Incidental, . . iii. 418, 419, 420
Duties of . . . iii. 412-414
Appointments by . . . iii. 372-386
when complete . iii. 397, 408
Removals by . . . iii. 388 - 397
Power to require Opinions of Departments iii. 340, 343
Calling forth Militia . . iii. 88 - 95
Making Treaties (See Treaties) . iii. 354 - 372
Command of Militia . . iii. 93-95
- Resignation of . ... iii. 334 - 337
Pardon and Reprieves by . iii. 340, 343 - 354
Qualifications of . . . iii. 331 - 334
Compensation of . . iii. 337-339
Oath of office . . . . iii. 339, 340
Commander of Army and Navy . iii. 340-342
Power to Convene and Adjourn Congress iii. 412 - 414
Receiving Ambassadors . iii. 414-420
Resignation of Office . iii. 334, 335, 337
Impeachment of . . ii. 247, 255,278, iii. 421
Veto . ii. 343 - 356. iii. 343 - 356, 421
PRESIDENT OF THE SENATE. . . ii. 208 - 211
{See Vice-President.)
PRESENTS FROM FOREIGN GOVERNMENTS, Pro-
hibition of .... iii. 215, 216
PRIORITY OF PAYMENT OF DEBTS DUE TO
THE UNITED STATES . . . iii. 153, 154
PROCESS, Due, of Law, what is . . . iii. 656, 661
PROCLAMATIONS, BY PRESIDENT, when proper iii. 419, 429
of Neutrality . . iii. 419, 420
PROHIBITIONS on the United States iii. 202-216
on the States . . . iii. 217-269
{See States)
PROPERTY taken for Public Use, Compensation for iii. 656, 661
PROPERTY OF UNITED STATES, Power of Con-
gress over .... iii. 193-198
PROPRIETARY GOVERNMENTS, what . . i. 144, 145
PROTECTIVE DUTIES. (.Sfe Taxes.) . ii.429-446
PROVLXCIAL GOVERNMENTS, what . • i. 143, I44
PUBLIC LANDS, .... iii. 184-19^
PUNISHMENTS, CRUEL, not to be inflicted iii. 750, 75i
INDEX. 773
rURCIIASE by the United States of Foricgn Ter-
ritory . . . -iii. inG-IGl
of Bills of Exchano-e . . . iii. 153
Q.
QUALIFICATIONS AND DISQUALIFICATIONS OF
OFFICE . . ii. 49, 204, 339-337
of House of Representatives ii. 46, 88 - 103
of Senate . . . ii. 204-208
of President . . . iii. 331 - 334
QUARTERING TROOPS, . . . iii. 747, 748
QUORUM OF EACH HOUSE . . . ii. 294, 295
R.
RATIFICATION OF CONSTITUTION, how
made .... i. 256, 257. iii. 709- 712
RECORDS AND LAWS OF STATES, how proved iii. 174 - 183
Effect of Proof iii. 174 - 183
of Colonies, effect of iii. 176, 177
RELIGIOUS TEST, Prohibition of . . Hi. 702, 705, 731
RELIGION, Freedom of . . . iii. 722-- 731
REMITTANCES, how United States may make . iii. 153
REMOVALS FORM OFFICE BY PRESIDENT iii. 388-397
Whether the Concurrence of the Senate
ought to be required . . iii. 388 - 397
REMOVAL of Suits from State Courts . iii. 608 - 611
REPRESENTATIVES, House of, in Colonies i. 149, 150
first Colonial, in Virginia i. 25, 26
in Congress . . ii. 46-172
How chosen . . ii. 45 _ qq
Term of Service . . ii. 47, 67-88
Qualifications of . ii. 46, 88 - 103
Apportionment of ii. 103 - 114, 137 - 158
Speaker of House of ii. 151 - 156
Impeachment hy . . ii. 159-171
Disqualifications cf . ii. 330-337
REPRIEVES AND PARDONS, Power of Presi-
dent . , , . . iii.340,343-354
REPRISAL, Letters of Marque and Reprisal iii. 59 - 64
{See Letters of Marque.)
RESERVED Powers and Rights of the People . iii. 751 - 754
RETROSPECTIVE LAWS . . . iii. 268-269
REVENUE, Bills to raise .... ii. 3.38 -343
REVENUE BILLS, what ... ii. 338 - 343
REVOLUTION, AMERICAN, Origin and History of i. 171,184-208
Powers of Government
during the 1.184-208
774
INDEX.
RHODE-ISLAND, Origin and Settlement of . i. 81 -92
RIGHTS RESERVED to the States and People iii. 751 -- 754
ROADS AND CANALS, Power as to . iii. 149, 153
S.
SEARCH AND SEIZURE OF PERSONS AND
PAPERS, Prohibition of . . . iii. 748-- 750
SEAT OF GOVERNMENT . . . iii. 96-101
Power of Legislation over iii. 102- 108
SEDITION ACT, whether Constitutional iii. 164- 166, 743, 744
SENATE, Organization of . • . ii. 173 - 184
How chosen . . . ii. 17J-184
Number of .... ii. 184-186
Term of Service ... ii. 187 - 203
Vacancies in, how supplied . . ii. 203
Qualifications of . . ii. 204-208
President of .... ii. 208-211
Power to try Impeachments . . ii. 214 - 279
[See Impeachments.)
Disqualifications of
SLAVES, Representation of ...
Migration and Importation of
Fugitive
SLAVERY, Restriction of, in Territories
SLAVE TRADE, Prohibition of
SOLDIERS, Quartering of, prohibited
SOUTH-CAROLINA, Origin and Settlement of
SPEECH, Liberty of, in Congress
SPEAKER OF HOUSE OF REPRESENTATIVES
STATES, Admission of new
Prohibitions on. [See Prohibitions.)
Treaties, Aliances, Compacts
Letters of Marque and War
Coining Money
Bills of Credit
Tender Laws
Impairing Contracts
Bills of Attainder
Ex post facto hdiws
Titles of Nobility
Keeping Army or Navy
Laying Duties or Imposts
Laying Taxes
Tax on Bank of United States
on Public Debt
ii. 330-337
ii. 107-114
iii. 202 - 206
iii. 075 ~ 677
iii. J84, 191, 192
iii. 202 - 206
iii. 747, 748
i. 117-127
ii. 318
ii. 151-156
. iii. 184-192
iii. 217 - 276
iii. 217, 218, 270-272
iii. 2J 8, 219
. iii. 219, 220
iii. 220 - 238
. iii. 236, 237
iii. 240-266
. iii.-217, 237
iii. 238, 239
iii. 269
iii. 272
. ii. 474-486
ii. 471,475-501
ii. 486-495
ii. 495-501
INDEX.
77b
STATES, Continued.
Tax on Importations
.
ii. 474-486
Tonnacre Duties
.
iii. 270
Declaring War
iii. 272,273
Suits by and against
. iii.
.543, 545 - 5G0
{5^ee Judiciary.)
When a party to a Suit
.
iii. 549-560
Courts of, Appeals from
iii.
572,576-612
SUPREMACY of Constitution, Laws, and Treaties
T
iii. 693-701
TAXES, Power of Congress to lay
.
ii. 366-534
Extent of power
.
ii. 366-- 502
Whether to regulate Commerce .
ii. 430 -
4.34, 529 - 534
or encourage Manufactures
.
ii. 429-440
for Common Defence and General
Welfare . . . ii.
367, 3C8,
429,444-458
for Internal Improvements
iii. 149
- 153, 440, 458
{See Appropriation.)
.
ii. 440 - 448
Direct, what
ii.
,424-428,442
Indirect, what
.
ii. 419-424
Power not exclusive
.
. ii. 411, 412
Restrictions on Power
.
ii. 469-471
Prohibitions on the States, as to
ii
.471,475-501
on District of Columbia
,
iii. 462 - 469
TENDER LAWS, Prohibition of .
.
iii. 236-238
TENURES OF LAND IN COLONIES
.
i. 159, 161
TERRITORIES OF UNITED STATES, Govern-
ment of
.
iii. 193-202
Restriction of Slavery in .
. iii. 184, 191, 192
Law of Conquered
.
i. 133, 134, 194
Law of Plantations. (5*66 United States.) i. 1.33, 134
TEST, Religious, Prohibition of ... iii. 702, 705
TESTIMONY OF CRIMINALS, not compulsive . iii. 656- 660
TONNAGE DUTIES, by United States . . ii. 469
Prohibition on States ii. 471,474. iii. 270
TREASON, Definition of ... . iii. 667 - 670
Evidence of . . . . iii. 667-671
Effect of Conviction . . . iii. 169, 170
Punishment of .... iii. 169-173
TREATIES, Prohibition on States to form iii. 217, 218, 270, 271
Power of President and Senate to make iii. 354— 372
TRIAL OF CRIMES, in what place . . iii. 652 - 655
by Jury, in Criminal Cases . . . iii. 652 — 656
in Civil Cases . . . iii. 628 - 648
TROOPS, Quartering, Prohibition of . . . iii. 747, 748
776 INDEX.
u.
UNITED COLONIES, Powers of, during Revolution i. 184 -208
UNION, Importance of .... i. 451 -- 463
UNITED STATES. {See Constitution.)
Supremacy of Laws of . iii. 693 — 701
Priority of Debts to . iii. 153, 154
Right to Sue . . . iii. 154, 155
Right to Contract and Grant iii. 154, 155
Right to Purchase Foreign Ter-
ritory . . . iii. 156 - 161
Right to acquire Domestic Ter-
ritory . . . iii. 184 -192
{See Prohibitions.)
UNITY OF EXECUTIVE, Reasons . . iii. 281 -291
V.
VACANCIES, Appointments by State Executives to
Senate .... ii. 203
Appointments by President in recess
of Congress . . . iii. 409-412
in Office of President and Vice-President iii. 334 - 337
VETO, President's . . . ii. 342-356. iii. 421, note
VICE-PRESIDENT, How chosen . . . iii. 311-330
Reasons for Creation of . iii. 308 - 311
President of Senate ii.208, 211. iii. 309,310
Powers and Duties ii. 208. iii. 334, 335
Vacancy of Office of . iii. 334, 337
Impeachment of . ii. 247, 255, 278
Duration of Office of . iii. 308, 309
Resignation of . . iii. 334-337
VIRGINIA, Origin and Settlement of . . i. 21-33
W.
WAR RANTS, General, Prohibition of . iii. 748 - 750
WAR, Power of Congress to Declare \ . iii. 59-64
Prohibition on the States . . . iii. 270, 272
WEIGHTS AND MEASURES, Power of Congress
as to iii. 20,21
WITNESSES, Criminals not bound to be . iii. 656, 660
in Criminal Cases . . iii. 656-662
WRIT OF ERROR, Nature and Effect of . iii. 626, 629
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